Citation Nr: 18143968 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 08-18 364 DATE: October 23, 2018 REMANDED Entitlement to a rating in excess of 40 percent for residuals of an L4-L5 laminectomy for herniated nucleus pulposus (low back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1973 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an August 2009 Travel Board hearing. In October 2015, the Board denied a rating in excess of 20 percent for the low back disability and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran appealed the Board’s decision regarding the low back disability to the United States Court of Appeals for Veterans Claims (Court) which, in an August 2016 Order, granted the parties’ Joint Motion for Partial Remand (JMPR), vacated the Board’s October 2015 decision concerning an increased rating for the low back disability and remanded the case for compliance with the terms of the JMPR. In November 2016, the Board remanded this case for further development consistent with the directions of the JMPR. In an April 2017 rating decision, the RO increased the rating for the Veteran’s low back disability to 40 percent disabling effective February 3, 2017 and assigned separate disability ratings for associated radiculopathy of the Veteran’s lower extremities. In August 2017, the Board granted an increased 40 percent rating for the low back disability from June 7, 2007 through February 3, 2017, and denied a rating greater than 40 percent throughout the appeal period; granted an increased rating for left lower extremity radiculopathy, 10 percent from June 7, 2007; and granted a 10 percent rating for right lower extremity radiculopathy from June 7, 2007 through December 20, 2011, and a 20 percent rating thereafter. The Veteran appealed the Board’s decision regarding the low back disability to the Court which, in an May 2018 Order, granted the parties’ JMPR, vacated and remanded the Board’s August 2017 decision concerning an increased rating for the low back disability greater than 40 percent. 1. Entitlement to a rating in excess of 40 percent for the low back disability is remanded. The parties to the JMPR determined that the December 2015 VA opinion addressing erectile dysfunction was inadequate because the examiner opined he could not comment on the existence of erectile dysfunction at present, nor as to the cause, without resorting to mere speculation, without sufficient rationale per Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (citing Jones v. Shinseki, 23 Vet. App. 382 (2010)). Accordingly, the Board finds that this matter must be remanded for an examination to determine the nature and etiology of the Veteran’s erectile dysfunction, to include whether such is secondary to his service-connected low back disability and associated medication. Updated treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for an examination to determine the nature and etiology of any current erectile dysfunction. The claims file should be made available to and reviewed by the examiner. Based on review of the record, the examiner should provide an opinion responding to the following: (a) Please identify whether the Veteran has erectile dysfunction. If the examiner does not diagnose erectile dysfunction, the examiner is asked to provide an opinion whether a diagnosis of such was in error, or whether the disability has resolved. (b) Provide an opinion whether it is at least as likely as not the Veteran’s erectile dysfunction is proximately due to his service-connected low back disability, to include associated medication. (c) Provide an opinion as to whether it is at least as likely as not the Veteran’s erectile dysfunction has been aggravated (worsened beyond natural progression) by his service-connected low back disability, to include associated medication. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a requested opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on a lack of knowledge of the medical community at large. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Marley, Counsel