Citation Nr: 1612484 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 10-21 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction (claimed as loss of use of a creative organ), to include as secondary to service-connected perirectal abscesses. 2. Entitlement to special monthly compensation based on loss of use of a creative organ. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1978 and from January 1981 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in April 2013. A transcript of the proceeding is associated with the claims file. In May 2014, the Board remanded the claims for further development, to include obtaining an addendum medical opinion and to adjudicate the issue of entitlement to a TDIU. The Board finds that the addendum opinion obtained following the remand to be inadequate in that it did not address the specific question asked in the prior remand. Because RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance, the Veteran's appeal as to service connection for erectile dysfunction and the intertwined issue of entitlement to special monthly compensation must again be remanded Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation based on loss of use of a creative organ are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence does not suggest that the Veteran is unemployable due solely to his service-connected perirectal abscesses or that it would not be possible for him to perform the physical and/or mental acts required by a job. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.655, 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in the January 2014 remand, the Board found that the issue of entitlement to a TDIU had been raised by the record. This claim was remanded for adjudication. In a February 2015 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for a TDIU, including what he needed to provide and what would be obtained by VA. Treatment records through April 2014 appear in the electronic claims file and a VA examination was provided which contains an opinion regarding the Veteran's employability. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of the claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Entitlement to TDIU As mentioned in the Introduction of the May 2014 remand that, in part, addressed the rating for the Veteran's service-connected perirectal abscesses, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Based on evidence in the February 2014 VA examination report that the Veteran's abscesses impacted his ability to work the Board found that the issue had been raised. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As of April 22, 2013 when the RO increased the Veteran's disability rating for his perirectal abscesses to 60 percent, the Veteran met the schedular percentage requirements for a TDIU under section 4.16(a). Prior to April 22, 2013, he did not meet the requirements and therefore, if appropriate, referral for extra-schedular consideration would be necessary. Following the May 2014 remand, the RO sent the Veteran a notice letter in February 2015 indicating the evidence he needed to provide in order to establish entitlement to TDIU. The Veteran did not respond to this letter. Overall, the only evidence indicating that perirectal abscesses affect the Veteran's employability is the indication that he would need to be near a restroom during the work day. See February 2014 VA Examination Report. The evidence of record does not include that the abscesses would affect his ability to perform the physical or mental aspects of a job. The Board also notes that the issue is not inextricably intertwined with the claim for service connection for erectile dysfunction that is being remanded herein because there has been no indication via assertion from the Veteran or in the evidence that erectile dysfunction has impacted his employability. Because the preponderance of the evidence is against the claim, the benefit of-the-doubt doctrine does not apply, and entitlement to a TDIU is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to a TDIU is denied. REMAND Reason for Remand: To obtain an addendum medical opinion from a medical professional who has not yet provided an opinion in the case. I. Entitlement to Service Connection for Erectile Dysfunction The Veteran contends that his erectile dysfunction (ED) is caused by or aggravated by his service-connected perirectal abscesses. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). In November 2010, following the Veteran's claim for special monthly compensation for loss of a creative organ, the RO sought an opinion. A VA examiner reviewed the claims file along with VA medical records. The examiner opined that it was "unlikely" that the Veteran's perirectal abscess with anal fistula and related surgery caused the Veteran's ED. He explained that the nerves and other tissues involved in the rectal area are separate from the nerves supplying the genitals and thus any nerve damage or scarring would not impact the tissues that control penile erection. In a May 2011 statement from the Veteran's private doctor, Dr. A.W., it was noted she had prescribed Viagra for his diagnosed ED. In May 2013, the Veteran submitted a statement from his private doctor, Dr. A.W., as to the relationship between his perirectal abscesses and his ED. She stated: It is my opinion that [the Veteran's] erectile dysfunction is most likely caused by or as a result of his pararectal [sic] abscess. The abscess causes constant discomfort and embarrassing side effects. This in turn affects his personal relationships and has resulted in erectile dysfunction. The Board recognized this positive nexus evidence in a January 2014 remand and asked the VA examiner who originally provided an opinion on the matter to take into account Dr. A.W.'s opinion and comment on whether the Veteran's service-connected perirectal abscesses were aggravating his ED even if the condition was not the cause. In February 2014, the examiner met with the Veteran and reviewed the claims file. He indicated that the onset of the Veteran's ED was in 2011 or 2012. As to the etiology of the disability, the examiner opined: It is less likely as not that the Veteran's current erectile dysfunction is related to or aggravated by any disease or injury that occurred during service or is related to service, including his service connected condition... The [service treatment records] document bilateral atrophied testicles on military entrance exam in 1975. There is no documented problem in service with erectile dysfunction at all that I could find, and he was discharged from service in 1985. Clinical exam today confirms the small testicles, as well as the quite enlarged prostate. Lab studies today show borderline low testosterone, which could also contribute to ED problems for this Veteran. There was no rationale provided as to why the examiner did not consider aggravation, even in light of Dr. A.W.'s May 2013 statement. In February 2014, the Veteran submitted an additional opinion from Dr. A.W. She stated: It is my opinion that [the Veteran's] erectile dysfunction is most likely caused by or as a result of his perirectal abscess. The abscess causes constant discomfort and embarrassing side effects that are only getting worse over time. With complete loss of sphincter control, there is no chance that his condition will improve. There is also scarring that is deep and painful that has resulted from tissue damage caused by multiple procedures. This in turn affects his personal relationships and has resulted in erectile dysfunction. It is in my opinion that [the Veteran] should be compensated for his erectile dysfunction. In May 2014, the Board remanded the claim again and determined that an additional addendum opinion was necessary as to whether the residuals of the Veteran's perirectal abscesses were making his ED chronically worse, even if the abscesses did not directly cause the ED. In February 2015, the VA examiner again reviewed the file and provided the following opinion: While the Veteran does definitely have problems with anal sphincter incontinence and soiling of undergarments, this has nothing to do etiologically with ED at all. Clinically the Veteran has small testicles, borderline low testosterone, and a markedly enlarged prostate, all of which contribute to his ED problem. With regard to Dr. [A.W]'s letter of 5/7/2013, she states that the Veteran has constant rectal discomfort with drainage and bowel incontinence, and then summarily states that this is causing his erectile dysfunction; however, she offers no convincing clinical argument for the causation other than the above statement, which is pure conjecture on her part. Therefore, the secondary service connection/aggravation is not substantiated at this time. In April 2015, the same examiner provided another addendum taking into account Dr. A.W.'s February 2014 statement. The examiner opined: I have reviewed [Dr. A.W.'s] second letter from 2/6/2014. Essentially it says the same thing that the previous letter stated. She states that the Veteran has total loss of anal sphincter control; my clinical exam of 2/10/2014 refutes that directly. There was moderate loss noted, but not complete loss. Additionally, she states that the Veteran has deep, painful scarring from his perirectal abscesses. The Veteran underwent a colonoscopy at the Fort Worth VA which I ordered, and this was performed [in April 2014]; the only finding was nonbleeding internal hemorrhoids and several benign colon polyps. There is no mention of any rectal or anal scarring at all. Finally, on my exam, the Veteran had clinically small testicles a markedly enlarged prostate, and a borderline low serum testosterone of 2.1 ng/ml. These are the reasons for his ED problem currently. Once more, I reiterate my opinion that there is no documented literature article showing causality between perirectal abscesses and erectile dysfunction. With regard to reconciliation of my opinion and those of [Dr. A.W.], that is clearly not possible; we simply disagree on these issues. The Board finds that the record still lacks an adequate opinion regarding whether the Veteran's ED was aggravated by his perirectal abscesses. The evidence seems clear that the perirectal abscesses are not clinically causing the ED; however, pursuant to 38 C.F.R. § 3.310(a), aggravation must be considered prior to a denial by the Board so that in the event a denial is proper, the Veteran can be provided adequate reasons and bases that properly consider all applicable theories of entitlement. Based on the foregoing, the Board will remand the claim for an additional addendum opinion from an examiner who has not previously reviewed the claims file. The examiner will be asked to take into consideration the opposing opinions provided by Dr. A.W. in May 2013 and February 2014 along with the VA examiner's opinions rendered in November 2010, February 2015 and April 2015. II. Special Monthly Compensation The issue of special monthly compensation for loss of use of a creative organ is inextricably intertwined with the issue of service connection for ED. Therefore, the Board must defer consideration of this claim until the development is complete on the issue of service connection for ED. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate VA examiner who has not yet reviewed the Veteran's claims file. The electronic claims file must be made available to and reviewed by the examiner. Based on a review of all evidence, the examiner should provide an opinion specifically regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed erectile dysfunction is aggravated by his service-connected perirectal abscesses. In providing the aforementioned opinion, the examiner should reference and discuss the conflicting opinions provided by Dr. A.W. in May 2013 and February 2014 and the opposing opinions of the VA examiner rendered in November 2010, February 2015 and April 2015. For purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute aggravation unless the underlying condition worsened beyond its natural progression. If the examiner determines that the erectile dysfunction is aggravated by the service-connected perirectal abscesses, the examiner must determine a baseline level of severity of the erectile dysfunction, established by medical evidence, prior to the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the disability. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file or to medical literature or treatises. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. The RO should ensure that the requested action has been accomplished in compliance with this remand. Stegall v. West, 11 Vet. App. 268 (1998). If the medical opinion as to aggravation provided appears to be inadequate, the RO should take appropriate corrective action. 3. When the development requested has been completed, the case shall again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran shall 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 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs