Citation Nr: 18158148 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 13-19 419 DATE: 1. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II and/or exposure to herbicides. December 14, 2018 2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to hypogonadism and/or exposure to herbicides. 3. Entitlement to service connection for hypogonadism, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides. 4. Entitlement to service connection for residuals of a pituitary gland disorder, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides. 5. Entitlement to an initial compensable disability rating for residuals of a traumatic brain injury (TBI). REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II and/or exposure to herbicides, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to hypogonadism and/or exposure to herbicides, is remanded. Entitlement to service connection for hypogonadism, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, is remanded. Entitlement to service connection for residuals of a pituitary gland disorder, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, is remanded. Entitlement to an initial compensable disability rating for residuals of a traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1965 to September 1969. The Veterans service personnel records document service in the Republic of Vietnam from June 6, 1966 to December 14, 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a July 2017 travel Board hearing. A transcript of that hearing has been associated with the claims file. These matters were last before the Board in October 2017, at which time they were remanded for further development. As discussed below, the Board finds that there has not been substantial compliance with its remand. The Board notes that the matter of entitlement to service connection for irritable bowel syndrome was granted in a July 2018 rating decision. As such, that matter is no longer in appellate status. 1. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II and/or exposure to herbicides is remanded. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In its October 2017 remand, the Board directed the RO to obtain an examination to provide an opinion as to whether the Veteran’s claimed erectile dysfunction was related to the Veteran’s active duty service, his claimed diabetes mellitus type II, or exposure to herbicides. Here, the November 2017 VA examiner offered no opinion as to whether the Veteran’s erectile dysfunction was related to the Veteran’s conceded exposure to herbicides. See, April 2010 VA diabetes mellitus examination. Furthermore, the examiner relied almost exclusively on a lack of service treatment records documenting erectile dysfunction while on active duty. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). As such, the Board finds the examination is inadequate and remands the matter for a new examination. 2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicide exposure and/or hypogonadism is remanded. In its October 2017 remand, the Board directed the RO to “[o]btain all outstanding VA treatment records.” The Board further directed that “[a]ll records obtained must be associated with the claims file.” The Board notes that no new VA treatment records have been added to the file since the October 2017 remand, but in the November 2017 VA diabetes examination, the examiner referenced a March 2017 VA treatment record that has not been associated with the claims file. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Here, the Board finds that a remand to obtain the outstanding VA treatment records and an addendum opinion is required. 3. Entitlement to service connection for hypogonadism, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides is remanded. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In its October 2017 remand, the Board directed the RO to obtain an examination to provide an opinion as to whether the Veteran’s claimed hypogonadism was related to the Veteran’s active duty service, his claimed diabetes mellitus type II, or exposure to herbicides. Here, the November 2017 VA examiner offered no opinion as to whether the Veteran’s hypogonadism was related to the Veteran’s conceded exposure to herbicides. See, April 2010 VA diabetes mellitus examination. Furthermore, the examiner relied almost exclusively on a lack of service treatment records documenting hypogonadism while on active duty. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). As such, the Board finds the examination is inadequate and remands the matter for a new examination. 4. Entitlement to service connection for residuals of a pituitary gland disorder, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides is remanded. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In its October 2017 remand, the Board directed the RO to obtain an examination to provide an opinion as to whether the Veteran’s claimed residuals of a pituitary gland disorder was related to the Veteran’s active duty service, his claimed diabetes mellitus type II, or exposure to herbicides. Here, the November 2017 VA examiner offered no opinion as to whether the Veteran’s residuals of a pituitary gland disorder are related to the Veteran’s conceded exposure to herbicides. See, April 2010 VA diabetes mellitus examination. Furthermore, the examiner relied almost exclusively on a lack of service treatment records documenting a pituitary gland disorder while on active duty. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). As such, the Board finds the examination is inadequate and remands the matter for a new examination. 5. Entitlement to an initial compensable disability rating for residuals of a traumatic brain injury (TBI) is remanded. In its October 2017 remand, the Board directed the RO to “[o]btain all outstanding VA treatment records.” The Board further directed that “[a]ll records obtained must be associated with the claims file.” The Board notes that no new VA treatment records have been added to the file since the October 2017 remand, but in the November 2017 VA TBI examination, the examiner referenced a March 2017 VA treatment record that has not been associated with the claims file. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Here, the Board finds that a remand to obtain the outstanding VA treatment records and an addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2013 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any erectile dysfunction. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including conceded exposure to herbicides. The examiner must opine as to whether it is at least as likely as not (1) proximately due to diabetes mellitus type II, or (2) aggravated beyond its natural progression by diabetes mellitus type II. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After, and only after, completion of step one above, return the claims file to the November 2017 examiner for an addendum opinion regarding whether the Veteran’s claimed diabetes mellitus type II is at least as likely as not related to an in-service injury, event, or disease, including conceded exposure to herbicides. A new VA examination should be provided if, and only if, deemed necessary by the examiner. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypogonadism. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including conceded exposure to herbicides. The examiner must opine as to whether it is at least as likely as not (1) proximately due to diabetes mellitus type II, or (2) aggravated beyond its natural progression by diabetes mellitus type II. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 5. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of a pituitary gland disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including conceded exposure to herbicides. The examiner must opine as to whether it is at least as likely as not (1) proximately due to diabetes mellitus type II, or (2) aggravated beyond its natural progression by diabetes mellitus type II. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 6. After, and only after, completion of step one above, return the claims file to the November 2017 examiner for an addendum opinion regarding the current manifestations and severity of the Veteran’s service-connected TBI. A new VA examination should be provided if, and only if, deemed necessary by the examiner. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 7. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 0 Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel