Citation Nr: 1753497 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-03 359A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement for service connection for erectile dysfunction, to including as secondary to the service-connected diabetes mellitus, type II. 2. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities, to including as secondary to the service-connected diabetes mellitus, type II. 3. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to an initial compensable rating for bilateral hearing loss. 5. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney-at-Law ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to September 1970. This case comes before the Board of Veterans Appeals (Board) on appeal from July 2010 and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In his February 2013 Substantive Appeal, the Veteran requested a Videoconference hearing. In November 2014, the Board remanded the claims to schedule the hearing. However, in a December 2014 Third Party Correspondence, and additionally, in a January 2017 Email Correspondence, the Veteran withdrew the hearing request. In December 2014, the Veteran applied for individual unemployability due to service-connected disabilities (TDIU). In July 2015, the RO denied the claim. Although the Veteran did not perfect an appeal of that denial, the Board notes that it has jurisdiction over the Veteran's TDIU claim as part and parcel of the Veteran's increased rating claim under Rice v Shinseki, 22 Vet App 447 (2009). Therefore, the claim is properly before the Board. The issues are REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The last adjudication of the issues on appeal was in a December 2012 statement of the case (SOC). Thereafter, additional relevant evidence was associated with the claims file, to include the April 2015 VA examination that addressed the claim for peripheral neuropathy of the bilateral upper extremities. Additionally, in the May 2017 SOC for the TDIU claim, it was noted that the RO had reviewed VA Medical Center Biloxi/Mobile VA Outpatient Clinic dated from October 2009 through June 2015. However, these records have not been associated with the claims file. Accordingly, such records should be obtained on remand. In September 2010, the Veteran underwent a VA examination to, among other things, determine the nature and etiology of his erectile dysfunction. The examiner confirmed the Veteran's erectile dysfunction diagnosis. The examiner stated that the Veteran's risk factors included diabetes mellitus, dyslipidemia, hypertension, hypertriglyceridemia, psychological, medications (i.e. SSRI) hypogonadism, natural aging, tobacco use history, and alcohol abuse history. The examiner further stated that the Veteran's erectile dysfunction "is not caused by or related to his service-connected diabetes mellitus. Other ED risk factors in this Veteran include dyslipidemia, HTN. . . . " The Board finds that the examination is inadequate as the medical opinion provides no rationale for why the Veteran's erectile dysfunction was not caused by or a result of his service connected diabetes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). The Board notes that the Veteran was last examined for PTSD September 2010. The Board also notes that the "mere passage of time" does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). However, in October 2014, the Veteran's private physician, Dr. J.G.L., Jr., performed a mental health evaluation on the Veteran. See Medical Treatment Record-Non-Government Facility entered in VBMS in December 2014. The examiner stated that the Veteran was depressed, anxious and irritable. The examiner suggests that the Veteran's disability has gotten worse. The examiner noted that the Veteran experienced memory impairment, panic attacks, and suspiciousness. Additionally, in his psychiatry outpatient note, the Veteran noted that his PTSD symptoms were getting worse. See Medical Treatment Record-Government Facility entered in VBMS in October 2017, page 70. The Board notes that the claim for a TDIU is "inextricably intertwined" with the claims on appeal so it must be remanded. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all current VA treatment records relevant to the claims on appeal and associate them with the claims file, to include those dated from 2009 to the present. 2. Thereafter, schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should also comment as to the impact of the PTSD on the Veteran's daily activities and his ability to maintain employment. 3. After the development in #1 has been completed, schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should also comment as to the impact of the hearing loss on the Veteran's daily activities and his ability to maintain employment. 4. After the development in #1 has been completed, schedule the Veteran for an appropriate VA examination for his erectile dysfunction claim. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting an interview of the Veteran, and undertaking any studies deemed necessary, the examiner should render an opinion as to whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) that the Veteran's erectile dysfunction disability: (a) was incurred in or is otherwise related to his active service OR (b) was caused by OR (c) was aggravated by a service-connected disability or disabilities, specifically to include diabetes mellitus, type II. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. "Aggravation" means that the disability has permanently worsened beyond its natural progression by the Veteran's service-connected disability. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If any of the benefits sought are not granted, the Veteran and his representative should 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 Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs