Citation Nr: 1802116 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-13 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1965 to September 1967. He served in Vietnam and was awarded the Vietnam Service Medal, the Combat Infantryman Badge, and the Vietnamese Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that the matter on appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The RO scheduled the Veteran for a VA examination in March 2007, November 2010, and November 2017 to address the Veteran's claim for entitlement to service connection for erectile dysfunction. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiners' responses are inadequate to resolve the Veteran's claim. Accordingly, the Board finds that a new VA medical examination and opinion is necessary to determine if the Veteran currently has erectile dysfunction and if so, the nature and etiology of any diagnosed disabilities is appropriate in this case. 38 C.F.R. § 3.159(c)(4)(2017). The RO obtained a VA medical opinion in March 2007 to determine the nature and etiology of the Veteran's erectile dysfunction, to include whether it is caused or aggravated by the Veteran's service-connected diabetes mellitus. The VA examiner concluded that it would be mere speculation to determine the cause or relationship of the Veteran's condition to diabetes mellitus as the Veteran has other comorbid conditions such as hypertension which existed prior to erectile dysfunction. However, the Board finds that the VA examiner failed to provide an adequate VA examination. The VA examiner provides a conclusory rationale and an incomplete analysis and she makes no mention of having reviewed the claims file before making such findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a new opinion is necessary. Another VA medical opinion was obtained in November 2010. Here, the VA examiner noted that there was no claims file available for her review and that multiple risk factors such as heavy alcohol use, medications, hypertension, tobacco use, dyslipidemia, and natural aging are the likely causes of the Veteran's erectile dysfunction. However, the Board finds that the VA examiner failed to provide an adequate VA examination. The VA examiner provides a conclusory rationale and an incomplete analysis and failed to consider all of the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran reports that he is not a heavy alcohol user and has not used tobacco in over thirty years. See November 2011 Notice of Disagreement; April 2013 VA Form 9; September 2017 hearing transcript. Instead, the Veteran argues that it is his service-connected diabetes mellitus that is the likely cause of his erectile dysfunction. Thus, the record is inconsistent with the VA examiner's opinion and a new opinion is warranted. As to the November 2017 VA examination, the VA examiner, Dr. G.W.D., noted that the Veteran's erectile dysfunction is at least as likely as not due to his service-connected diabetes mellitus. However, the VA examiner failed to provide a rationale for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, a new opinion continues to be necessary. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA treatment records dated since September 2010 should be associated with the claims file. 2. After the above development has been completed and all records have been associated with the claims file, an addendum opinion must be requested from Dr. G.W.D., or if he is unavailable, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed erectile dysfunction. If a new examination is required, any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder should be reviewed by the examiner. The examination report should note review of these records and specifically the March 2007 VA examination report, the November 2010 examination report, the November 2017 examination report, and the Veteran's testimony at the September 2017 hearing. The examiner should then: (a) Provide a specific diagnosis for any current erectile dysfunction. (b) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any diagnosed erectile dysfunction originated during, or is etiologically related to, active duty service. (c) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any currently diagnosed erectile dysfunction was caused or aggravated by the Veteran's service-connected disability or disabilities, including diabetes mellitus and posttraumatic stress disorder (PTSD). By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 3. After conducting any additional development deemed necessary, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, allow the appropriate time for response, and thereafter return the case to the Board, if in order. 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). _________________________________________________ Michael J. Skaltsounis 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).