Citation Nr: 1801924	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  12-32 284	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for erectile dysfunction.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the Navy from May 1968 to February 1970.  

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In March 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ).  Subsequently, in September 2015, the Board remanded the claim for additional development.  In July 2016, the Veteran testified at another hearing before the undersigned VLJ.  Transcripts of the hearings are of record. 

The issue was previously denied by the Board in a January 2017 decision. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (CAVC) and a Joint Motion for Remand (JMR) was issued vacating, in part, and remanding the Board's decision with regard to the above stated issue.  The Board notes that the issue in appellate status was previously considered on a secondary basis based on a contention that the disability was due to diabetes mellitus.  As service connection is not effect for diabetes, service connection on a secondary basis need not be further considered at this time.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In the October 2017 JMR, the Court vacated and remanded the Board's denial of service connection for erectile dysfunction based on the determination that the 2015 VA examination was inadequate.   See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Based on the findings of the JMR, a remand is necessary to obtain an additional medical opinion.  


Accordingly, the case is REMANDED for the following action:

1. Update VA medical record. 

2.  Thereafter, schedule the Veteran for a VA examination to determine the etiology of his erectile dysfunction.  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Is the Veteran's erectile dysfunction at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran's active service, to include in-service treatment for hydrocele of the left testicle/hydrocelectomy?  

A complete rationale should be provided for all opinions and should fully consider the Veteran's lay testimony.  If the examiner finds that the disability is due to another disability, complete rationale for the attribution to this separate disability must be provided.   If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

3.  The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

4.  Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case to him and his representative and allow the applicable time for response.  Then, return the case to the Board.

The Veteran 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. §§ 5109B, 7112 (2012).


      __________________________               __________________________              
              NATHANIEL J. DOAN                                 K. MILLIKAN
                Veterans Law Judge                               Veterans Law Judge
          Board of Veterans' Appeals                   Board of Veterans' Appeals


__________________________              
JOHN Z. JONES
Veterans Law Judge
Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).