Citation Nr: 18143742 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-26 352 DATE: October 23, 2018 REMANDED Entitlement to a compensable evaluation for sinusitis is remanded. Entitlement to a compensable evaluation for hypertension is remanded. Entitlement to service connection for an inguinal hernia is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disorder other than service-connected posttraumatic stress disorder (PTSD), to include bipolar disorder and depressive disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1993 to March 2013. With respect to all claims, a review of the record reveals that the Veteran receives regular VA treatment, to include treatment at the Beckley VA Medical Center in Beckley, West Virginia; the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia; and the Greenbrier County VA Clinic in Ronceverte, West Virginia. However, the most recent VA treatment records associated with the claims file are dated in May 2016, over two years ago. Thus, on remand, updated VA treatment records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Additionally, the Veteran was last provided with a VA examination relevant to his claim of entitlement to an increased evaluation for hypertension in October 2014 (approximately four years ago), while he was last provided with a VA examination relevant to his claim of entitlement to an increased evaluation for sinusitis in April 2015 (over three years ago). However, in his June 2016 VA Form 9, the Veteran described symptomatology and treatment for sinus and hypertension symptomatology that had increased since his most recent VA examinations. As such, the Board finds it necessary to remand these matters to afford the Veteran an opportunity to undergo contemporaneous VA examinations to assess the current nature, extent and severity of his service-connected sinusitis and hypertension. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Board acknowledges that evidence recently added to the record suggests that the Veteran may currently be incarcerated at Stateville Correctional Center in Joliet, Illinois. However, although VA may not have the authority to require a correctional facility to release the Veteran for the purposes of a VA examination, VA nevertheless must be certain to tailor its assistance to the peculiar circumstances of a Veteran's confinement. See generally Wood v. Derwinski, 1 Vet. App. 190 (1991) (noting incarcerated Veterans be afforded the same treatment as non-incarcerated Veterans in pursuing disability compensation claims); Bolton v. Brown, 8 Vet. App. 185 (1995) (noting that if VBA cannot arrange for an examination, it must document efforts to do so in the claims file and concluding that the Court could not "lightly infer that the duty to assist a Veteran in developing his [sic] claim applies any less to an incarcerated Veteran than to a non-incarcerated veteran"). With respect to the issue of entitlement to erectile dysfunction, the Veteran reported that he developed the disorder after returning from deployment in 1995, and that it has been getting progressively worse. He was provided with a VA Male Reproductive System Conditions examination in April 2015, at which time he was diagnosed as having erectile dysfunction. However, the examiner explained that: Regarding the Veteran's erectile dysfunction, I have studied extensively including medical journal. I also reviewed the library of the National Medical Society for erectile dysfunction. As per this medical journal, prevalence of ED in approximately 5% of men at the age of 40, increasing up to 15-25% by age 65. Massachusetts Male Aging Study (community-based survey of men 40-70 years) - 52% of all respondents reports some degree of erectile dysfunction. As per this literature, other causes of erectile dysfunction include vascular disease (hypertension and coronary artery disease), neuropathy, Peyronie's disease, hypertension, hyperlipidemia, hypogonadism, endocrine disorders including diabetes, smoking, alcohol abuse, trauma or surgery to the pelvis or spine, depression, drug abuse, anemia, vascular disease and vascular surgery and CAD. Drugs associated with erectile dysfunction include estrogen, antiandrogen, H2 receptor blocker including cimetidine and ranitidine, anticholinergic drugs, ketoconazole, antidepressants, marijuana, antihypertensives, narcotics, beta blockers, psychotropic drugs, cigarette smoking, cocaine, spironolactone, lipid-lowering agents, NSAIDs, cytotoxic drugs, as well as diuretics including furosemide and hydrochlorothiazide. On the basis of the above-mentioned medical literature, the Veteran's erectile dysfunction is multifactorial. It is more likely from his age, history of hypertension, and it medication especially metorolol as well as PTDS and its medications. The specific weight for each of the risk factors cannot be determined. Therefore, I cannot resolve this medical issue without resorting to mere speculation. The Board finds this opinion to be inadequate. See 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); see also Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (holding that the Board cannot rely on an examiner's conclusion that an etiology opinion would be speculative, unless the examiner explains the basis for that opinion and clearly identifies what facts cannot be determined). Here, the VA examiner merely listed a variety of possible causes and risk factors of erectile dysfunction, and then concluded that this specific Veteran’s erectile dysfunction was multifactorial and the question of etiology could not be determined without resorting to mere speculation. Crucially, the VA examiner failed to provide a nuanced discussion as to the causes and risk factors specific to this Veteran. To this point, the Board notes that many of the risk factors listed by the examiner were indeed applicable to this specific Veteran, such as history of service-connected hypertension, service-connected PTSD, and medication used to treat service-connected PTSD. Furthermore, the VA examiner did not discuss whether the Veteran's service-connected hypertension and/or PTSD, or the medication used to treat these service-connected disabilities, aggravated his erectile dysfunction. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b).) Accordingly, on remand, an opinion addressing whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected disabilities is required. With respect to the claim of entitlement to service connection for an inguinal hernia, the Veteran was provided with a VA Hernias examination in October 2014, at which time he was diagnosed as having an inguinal hernia. However, with respect to the probable etiology of his diagnosed inguinal hernia, the VA examiner opined that: This is a diagnosable but a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology due to exposure to environmental hazards experienced during military service in Southwest Asia. The environmental hazards may have included: exposure to smoke and particles from oil well fires; exposure to pesticides and insecticides; exposure to indigenous infectious diseases; exposure to solvent and fuel fumes; ingestion of pyridostigmine bromide tablets, as a nerve gas antidote; the combined effect of multiple vaccines administered upon deployment; and inhalation of ultra fine-grains and particles. In addition, there may have been exposure to smoke and particles from military installation "burn pit" fires that incinerated range of toxic waste materials. However, the Board finds this opinion to be inadequate. See Barr, supra. Specifically, the VA examiner seemed to opine that the Veteran’s diagnosed inguinal hernia was caused by exposure to environmental hazards during his service in Southwest Asia. However, an inguinal hernia occurs when tissue, such as part of the intestine, protrudes through a weak spot in the abdominal muscles, and are not among the chronic, unexplained symptoms presumed to be due to service in the Southwest Asia, which include myalgic encephalomyelitis / chronic fatigue syndrome, fibromyalgia, functional gastrointestinal disorders (without a structural alteration in the tissues), as well as undiagnosed illnesses with symptoms that may include but are not limited to abnormal weight loss, fatigue, cardiovascular disease, muscle and joint pain, headache, menstrual disorders, neurological and psychological problems, skin conditions, respiratory disorders, and sleep disturbances. As such, on Remand, an addendum opinion should be obtained which explains the VA examiner’s rationale supporting the association of the Veteran’s diagnosed inguinal hernia with his presumed exposure to environmental hazards during his service in Southwest Asia. With respect to the claim of entitlement to an acquired psychiatric disorder other than PTSD, the Board notes that the Veteran is already service connected for PTSD with secondary depressive disorder, which has been evaluated as 30 percent disabling since April 2013. However, the Veteran has asserted he also has a diagnosis of bipolar disorder which is separate and distinct from his service-connected PTSD with secondary depressive disorder. Indeed, the Veteran was provided with a VA PTSD examination in October 2014, at which time the examiner concluded that: Veteran has a claim for PTSD, along with mood issues of Bipolar and Depression and other Anxiety and sleep related issues. Veteran mood issues are not to the extent of Bipolar Disorder at this time. His irritability and depression which constitutes two types of symptoms as in bipolar, relates to the irritability of PTSD and Depression as secondary to his PTSD. The sleep problems and anxiety are incorporated symptoms of PTSD. This opinion suggests that while the Veteran’s sleeping problems and anxiety were merely symptoms of his PTSD, his bipolar mood issues were not (although they did not rise to the level of a diagnosable bipolar disorder at that time). The Board emphasizes that pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. Here, the Board acknowledges that the Veteran is currently service connected for "PTSD with secondary depressive disorder," and that the October 2014 VA PTSD examination indicated mood issues had not yet risen to the extent of bipolar disorder at that time. As such, an opinion should be obtained as to whether the Veteran has since exhibited psychiatric symptomatology that can be diagnosed as bipolar disorder or another psychiatric disorder that is separate and distinct from his service-connected PTSD with secondary depressive disorder. For every psychiatric diagnosis that is separate and distinct from the Veteran's service-connected PTSD, an opinion should be obtained as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disorder manifested in service or is otherwise related to service, or that it was caused or aggravated by the Veteran's service-connected PTSD. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from the Beckley VA Medical Center in Beckley, West Virginia, the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia, and the Greenbrier County VA Clinic in Ronceverte, West Virginia, to include all associated outpatient clinics, since May 2016, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. Make efforts to confirm whether the Veteran has been released from incarceration. If the Veteran is still incarcerated, then confer with the Veteran's correctional facility authorities to determine whether the Veteran may be examined at the prison by prison medical providers at VA expense, or other alternative manner. If a problem cannot be resolved at the local level, then contact the C&P Service Program Review Staff (214A) for assistance. All efforts to provide the Veteran medical examinations should be fully documented in the record. If physical examination of the Veteran can be achieved, the following should be obtained: (a.) Schedule the Veteran for a VA sinus examination by an appropriate medical professional to assess the current severity of his sinusitis. The entire claims file should be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner should identify and completely describe all current symptomatology related to the Veteran's sinusitis. A rationale should be provided for all opinions expressed. (b.) Schedule the Veteran for a VA examination to ascertain the nature and severity of his service-connected hypertension and any residual manifestations. The claims file should be made available to and reviewed by the examiner and all indicated tests should be conducted. The examiner should discuss on any possible ameliorative effects the Veteran's hypertension medication may have on is hypertension symptoms. The examination report must include a complete rationale for all opinions expressed. (c.) Schedule the Veteran for an appropriate VA examination to determine the probable nature and etiology of his diagnosed erectile dysfunction. The claims file and a copy of this Remand should be made available to the examiner in conjunction with the examination. All medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence, to include the service treatment records, VA treatment records, and lay evidence, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed erectile dysfunction was caused or aggravated by a service-connected disability, to include hypertension, PTSD, and/or any medication prescribed to treat a service-connected disability. Aggravation is defined as a worsening beyond the natural progression of the disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. All opinions must be accompanied by a complete rationale. If any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided, including stating whether there is any missing evidence that would be needed in order to provide an opinion. (d.) Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any diagnosed acquired psychiatric disorder (to include bipolar disorder) manifested by symptoms that are separate and distinct from his service-connected PTSD with secondary depressive disorder. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a review of the claims file, to include service and post-service medical records as well as the examination results, the examiner is requested to determine whether the Veteran has an acquired psychiatric disorder (to include bipolar disorder) manifested by symptoms that are separate and distinct from his service-connected PTSD with secondary depressive disorder. If any acquired psychiatric disorder other than PTSD with secondary depressive disorder (to include bipolar disorder) is diagnosed, then the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disability is related to service. The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disability (to include bipolar disorder) was caused or has been aggravated by one or more of the Veteran’s service-connected disabilities, to include PTSD with secondary depressive disorder. Aggravation is defined as a worsening beyond the natural progression of the disability. A complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any of the above cannot be answered without resorting to speculation, state why that is so. 3. Return the claims file, to include a copy of this Remand, to the October 2014 VA examiner who examined the Veteran in conjunction with his claim of entitlement to service connection for an inguinal hernia in order to obtain an addendum opinion. The examiner must provide an opinion as to whether the Veteran's diagnosed inguinal hernia is at least as likely as not (50 percent or greater probability) etiologically related to service. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed inguinal hernia and/or related symptomatology constitutes as a qualifying chronic disability. Any opinion provided should specifically address the possibility that the Veteran's inguinal hernia may be a manifestation of an undiagnosed illness, the clinical basis for any such finding, and also address the previous opinion set forth in the October 2014 VA Hernias examination report. If the appropriate October 2014 VA examiner is unavailable, then another qualified examiner should be requested to provide the same opinions. If the new examiner determines that a new VA examination is necessary in order to provide the requested opinions, and such examination may be reasonably accomplished as outlined above, then such examination should be scheduled. 4. After the development requested is completed, readjudicate the claims on appeal. If any benefit sought   remains denied, then furnish the Veteran a Supplemental Statement of the Case and a reasonable period to respond, and then return the case to the Board. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel