Citation Nr: 18144690 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 13-28 747A DATE: October 25, 2018 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to service connected advanced lumbar degenerative disc disease (DDD) is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to a neck disability is remanded. Entitlement to an increased disability rating for advanced DDD, status post low back surgery with nontender scar, currently evaluated as 10 percent disability from January 1, 2009 and as 20 percent disabling from April 27, 2010 is remanded. Entitlement to an extension of a temporary total rating (from November 20, 2008) beyond January 1, 2009 for advanced lumbar DDD, status post low back surgery with nontender scar is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his erectile dysfunction was aggravated by his service-connected lumber degenerative disc disease (DDD). CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to service connected advanced lumbar degenerative disc disease (DDD) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to June 1971. 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected advanced lumbar degenerative disc disease (DDD) A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims service connection for erectile dysfunction secondary to his service connected advanced DDD. In April 2013, the Veteran was provided a VA examination and a medical opinion. The April 2013 VA examiner diagnosed erectile dysfunction and indicated that the etiology of the erectile dysfunction was lumbar DDD. However, the examiner also provided an opinion that the Veteran’s erectile dysfunction was less likely than not proximately due to or the result or aggravated by his primary diagnosis of advanced lumbar DDD. In support of this opinion, the examiner stated the Veteran reported erectile dysfunction and the use of Metoprolol for 5 to 10 years. It was noted that Metoprolol is a cause of male erectile dysfunction; records also note history of hypertension, obesity, hypercholesterolemia and alcohol use, all common causes of erectile dysfunction; and lumbar DDD is not a common cause of male erectile dysfunction. The examiner thus concluded that the available evidence did not support the claim. Because the conflicting contents in the April 2013 examination report, an addendum opinion was obtained in May 2013. The examiner clarified that the etiology of the Veteran’s erectile dysfunction was multifactorial and that it was not at least as likely as not that the Veteran’s erectile dysfunction was attributable to his primary diagnosis of lumbar DDD. Because the April 2013 VA medical opinion did not address the issue of aggravation, the Board remanded the claim for a supplemental VA medical opinion. The Veteran was afforded a VA examination in November 2017. After reviewing the Veteran’s previous examination and after interviewing the Veteran, the examiner opined that the Veteran’s erectile dysfunction is less likely due to his lower back DDD. The examiner expressed that the Veteran does not have extreme lower sacral disease and that S2-S4/pudendal nerves are more likely to cause erectile issues. Regarding aggravation, the examiner expressed that “with so many other intertwined medical comorbidities [the Veteran] has, comments about true aggravation cannot be applied.” When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). After review of the evidence of record, the Board finds that the evidence is in equipoise regarding whether the Veteran’s lower back DDD aggravated his erectile dysfunction. The April 2013 and November 2017 VA medical opinions discussed above did not meaningfully address the Veteran’s aggravation contentions, and is therefore not probative. However, as reported in the November 2017 VA opinion, there appears to be multiple intertwined medical comorbidities that could exacerbate the Veteran’s erectile dysfunction. Given that an April 2010 VA examiner noted that the Veteran has mild paravertebral tenderness over the right side of the lower lumbosacral area and that the November 2017 VA examiner indicated that the S2-S4 pudendal nerves are more likely the cause of erectile issues, the Board finds that the evidence is in equipoise. It is well established that the Board may not refute expert medical conclusions in the record with its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, absent persuasive medical evidence actually denying aggravation between the Veteran’s lumber back DDD and his erectile dysfunction, the Board finds that the evidence, taken together, is at least in equipoise on this issue. Resolving reasonable doubt in the Veteran’s favor, his claim will be granted. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. In October 2017, the Board remanded the issue of service connection for a neck disability. The remand directives required the RO to forward the claims file to a VA examiner to determine the nature and etiology of the Veteran’s current neck disability and right upper extremity disability. When rendering the requested medical opinion, the examiner was asked to specifically address whether the Veteran’s neck disability was related to the Veteran’s claimed accident during an urgent water well repair in Saigon. Upon review of the November 2017 VA medical opinion, the Board finds that the examiner did not specifically address the Veteran’s accident during an urgent water well repair in Saigon. The examiner merely agreed with the prior April 2013 VA examiner’s opinion and did not specifically address the Veteran’s water well repair accident. Therefore, the examiner did not comply with the prior remand directives and a remand for a new opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303; Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to a neck disability is remanded. The Veteran contends that his radiculopathy of the right upper extremity is secondary to his neck disability. The Board finds that this secondary claim is inextricably intertwined with the remanded claim; consideration of these matters must be deferred pending resolution of that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to an increased disability rating for advanced DDD, status post low back surgery with nontender scar, currently evaluated as 10 percent disability from January 1, 2009 and as 20 percent disabling from April 27, 2010 is remanded. An examination is inadequate when the examiner declines to offer an opinion as to additional functional loss during flare ups due to a lack of direct observation of functionality under those circumstances. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Instead, the examiner is required to elicit relevant information as to the Veteran’s flare ups, ask the Veteran to describe additional functional loss and then estimate the functional loss due to flare ups based on all the evidence of record. Id. at 34-35 The Veteran was provided a VA back examination in November 2017. On examination, the Veteran reported flare-ups. With regard to whether pain, weakness, fatigability, or incoordination significantly limit functional ability, the examiner indicated that he was unable to say without mere speculation. The examiner expressed that the examiner would need to be present during a flare up to determine objectively and without bias whether any additional loss of range of motion or functional loss is present during an actual flare. As the November 2017 examiner declined to offer an opinion as to functional loss during flare ups due to lack of direct observation, it is inadequate. Sharp, 29 Vet. App. 26. As the November 2017 VA examination did not fully satisfy the requirements of Sharp and 38 C.F.R. § 4.59, a new examination must therefore be provided upon remand. 4. Entitlement to an extension of a temporary total rating (from November 20, 2008) beyond January 1, 2009 for advanced lumbar DDD, status post low back surgery with nontender scar is remanded. The Board will defer consideration of the issue of an extension of the Veteran’s temporary total rating for his advanced lumbar DDD beyond January 1, 2009 because it is inextricably intertwined with his claim for an increased rating for his service-connected advanced lumbar DDD disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing directive #1, forward the claims file to the November 2017 VA examiner, or to an examiner with appropriate expertise, to determine the nature and etiology of any current neck disability. The claims file should be made available to the examiner in conjunction with the examination. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment should be obtained. After a thorough review of all the evidence in the claims file, to include the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s lay statements, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neck disability was incurred in or otherwise related to the Veteran’s military service, specifically to include the claimed accident during an urgent water well repair in Saigon. The examiner is asked to elicit information from the Veteran regarding current symptoms and complaints through the years, and fully consider the Veteran’s lay statements regarding the onset and symptoms of the claimed disability. The examiner should address whether any claimed symptoms in service are consistent with any current disorder. A complete rationale for any opinion expressed should be provided. 3. After completing directive #1, schedule the Veteran for an appropriate VA examination to determine the current level of severity of his back disability. The examiner should review the file and provide a complete rationale for all opinions expressed. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (Continued on the next page)   If the examination does not take place during a flare-up, the examiner should elicit relevant information as to the Veteran’s flare ups, ask the Veteran to describe additional functional loss and then estimate the functional loss due to flare ups based on all the evidence of record. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings to the conclusions. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D., Associate Counsel