Citation Nr: 18156096 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-54 945 DATE: December 6, 2018 ORDER Entitlement to service connection for erectile dysfunction is granted. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is granted. REMANDED Entitlement to service connection for loss of bowel control is remanded. Entitlement to service connection for urinary incontinence is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, erectile dysfunction is due to the Veteran’s service-connected lumbar spine intervertebral disc syndrome (back disability). 2. The Veteran is service-connected for erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for SMC based on loss of use of a creative organ have been met. 38 U.S.C. §§ 1114(k), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1983 to July 1986. Entitlement to service connection for erectile dysfunction Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the United States Court of Appeals for Veterans Claims has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims, in essence, that he is entitled to service connection for erectile dysfunction because it is due to his service-connected back disability. The record shows a diagnosis of erectile dysfunction. See, e.g., VA examination dated in December 2014. The record also shows that the Veteran is service-connected for a back disability. Therefore, the only question remaining for the Board to consider is whether the Veteran’s erectile dysfunction was caused or aggravated by his service-connected back disability In this regard, the December 2014 VA examiner opined, in substance, that the Veteran’s erectile dysfunction was due, at least in part, to his chronic pain. Given the 60 percent rating in effect for the Veteran’s service-connected back disability and with granting him the benefit of any doubt in this matter, the Board finds that the December 2014 VA examiner’s reference to chronic pain referred to the pain caused by his service-connected back disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The Board also finds the December 2014 VA examiner’s opinion the most probative evidence of record because it was provided after a review of the record on appeal, an examination of the Veteran, and it is supported by citation to evidence found in the record. In addition, it is as not contradicted by any other medical evidence of record. See Owens, supra; See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Given the above facts and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that the most probative evidence of record supports granting secondary service connection for erectile dysfunction. See 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. Entitlement to SMC based on loss of use of creative organ The Veteran contends that he is entitled to SMC based on loss of use of a creative organ due to his erectile dysfunction. As noted above, service connection is now in effect for erectile dysfunction as secondary to his service-connected back disorder. VA provides SMC if a veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k). Entitlement to SMC based on loss of use of a creative organ can also be granted based on erectile dysfunction. 38 C.F.R. § 3.350 (a)(1)(ii). Therefore, in light of the above grant of service connection for erectile dysfunction, the Board also grants SMC for loss of use of a creative organ. REASONS FOR REMAND Entitlement to service connection for loss of bowel control and urinary incontinence The Veteran asserts he has loss of bowel control and urinary incontinence due to his service-connected back disability. Upon review, the Board finds the etiology opinions provided by the October 2014 and December 2014 VA examiners concerning such disorders are contradictory and require additional clarification as a result. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Here, although the October 2014 VA examiner found the Veteran had neurologic abnormalities, to include loss of bowel and bladder control, related to a diagnosed back disability, the December 2014 VA examiner appears to have provided a negative, or at least, inconclusive opinion regarding the etiology of the Veteran’s loss of bowel control and urinary incontinence. The October 2014 VA examiner did not provide a rationale for such finding. Additionally, the December 2014 VA examiner opined, in substance, that he was not the appropriate person to provide the etiology opinions; instead, the opinions should be obtained from gastrointestinal and urological examiners. 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). Therefore, the Board finds these issues need to be remanded to provide the Veteran with a new VA examination to obtain adequate etiology opinions. See 38 U.S.C. § 5103A(d). While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). These issues are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit any new pertinent evidence. 3. Thereafter, schedule the Veteran for VA gastrointestinal/urological examinations with a suitably-qualified medical professional to address the etiology of his reported loss of bowel control and urinary incontinence. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that loss of bowel control and/or urinary incontinence is related to the Veteran’s military service. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any reported loss of bowel control and/or urinary incontinence was caused by the service-connected lumbar spine intervertebral disc syndrome. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that loss of bowel control and/or urinary incontinence was permanently aggravated beyond the normal course of the condition by the service-connected lumbar spine intervertebral disc syndrome. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner should consider and discuss the October 2014 and December 2014 VA examiners’ opinions. In providing answers to the above questions, the examiner is also advised that 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 conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel