Citation Nr: 18159647 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 09-26 217 DATE: December 19, 2018 REMANDED Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD) and/or hiatal hernia and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for erectile dysfunction, to include special monthly compensation for loss of use of a creative organ and to include as secondary to service-connected disabilities, is remanded. Entitlement to extraschedular consideration for asbestosis for the period prior to November 13, 2013, is remanded. Entitlement to an initial evaluation in excess of 10 percent for coronary artery disease (CAD) for the period prior to April 10, 2006, and in excess of 30 percent thereafter, is remanded. Entitlement to an effective date prior to October 17, 2005, for the award of service connection for CAD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to November 13, 2013, is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1970 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2007, February 2015, and June 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). As indicated in the June 2017 Board decision, the claim for an increased rating for asbestosis was initially denied in the November 2007 rating decision and the Veteran timely appealed that claim. During the pendency of that appeal, the Veteran was awarded a 100 percent evaluation for his asbestosis on November 13, 2013 in a July 2014 rating decision. In an October 2014 Board decision, the Board denied an evaluation in excess of 60 percent for asbestosis for the period prior to November 13, 2013; the Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2016, the Court issued a Memorandum Decision which vacated and remanded the issue of extraschedular consideration for the Veteran’s asbestosis for the period prior to November 13, 2013. The Board remanded that claim as intertwined with the GERD and erectile dysfunction claims in the June 2017 Board decision. Respecting the GERD and erectile dysfunction claims, those claims stem from denial in the February 2015 rating decision, and the Veteran timely completed appeal of those issues. Those issues were last before the Board in June 2017, at which time the Board remanded those claims for additional development. Those claims, along with the asbestosis claim, have been returned to the Board for further appellate review at this time. Initially, the Board reflects that the Agency of Original Jurisdiction (AOJ) awarded service connection for the Veteran’s CAD in a June 2017 rating decision; the AOJ awarded service connection beginning on October 17, 2005, and assigned a 10 percent evaluation for that disability from October 17, 2005 through April 9, 2006, and for the period beginning April 10, 2006, assigned a 30 percent evaluation. In October 2017, the Veteran submitted through his representative a Notice of Disagreement, VA Form 21-0958, which indicated that he wished to appeal the assigned evaluation of the disability and that he wanted the “highest possible evaluation from the earliest possible effective date.” He also indicated that he wanted an award of TDIU for the period prior to November 13, 2013 based on Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board finds that the Veteran has timely submitted a Notice of disagreement with the issues of increased evaluation and earlier effective date claims for his CAD, as well as a TDIU claim for the period prior to November 13, 2013; as of this decision, no statement of the case has been issued with respect to those issues and therefore those claims are remanded at this time in order for such to be accomplished. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9(c). Respecting the GERD and erectile dysfunction claims, the Board remanded those claims in June 2017 in order to obtain VA examinations and medical opinions, to include on a secondary service connection basis to the Veteran’s service-connected disabilities; such was accomplished in February 2018. Initially, respecting GERD, the examiner opined that the Veteran’s GERD was not noted during service or within one year of discharge therefrom; he was diagnosed with GERD many years after discharge and therefore it was less likely than not related to military service. Regarding secondary service connection, the examiner opined that the Veteran’s GERD was not caused by his asbestosis, polycythemia vera, and CAD; she noted that the Veteran’s hiatal hernia and GERD were diagnosed several years after his service-connected disability and that the medical literature indicated that hiatal hernia was a risk factor for GERD. She therefore concluded that it was less likely than not that the Veteran’s GERD was caused by his service-connected disabilities. Additionally, the examiner opined that aggravation of his GERD had several risk factors including obesity, hiatal hernia, and different medications for health conditions. She again noted that the Veteran’s service-connected disabilities did not cause his GERD and that his GERD symptoms were stable on Nexium and dietary modifications. She therefore concluded that the Veteran’s GERD was not aggravated by his service-connected disabilities. The Board notes that the negative causal relationship opinion noted above is conclusory and is not supported by a rationale other than GERD had onset after his service-connected disabilities—which the Board notes would necessarily be a logical predicate for something to cause something else and does not otherwise indicate any sort of rationale for why the service-connected disabilities did not cause the Veteran’s GERD—and that hiatal hernia was a risk factor, without discussing whether the service-connected disabilities caused or aggravated the hiatal hernia. Thus, the obtained medical opinion is inadequate. As the February 2018 medical opinion is inadequate, a remand is necessary in order to obtain an adequate addendum opinion from a gastroenterologist that has not previously participated in this case, in order to ensure compliance with the Board’s previous remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); Stegall v. West, 11 Vet. App. 268 (1998) a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Respecting the claim for service connection for erectile dysfunction, the examiner opined that the Veteran’s erectile dysfunction was not noted during service or within one year of discharge therefrom; he was diagnosed with erectile dysfunction many years after discharge and therefore it was less likely than not related to military service. Regarding secondary service connection, the examiner opined that the Veteran’s erectile dysfunction was not caused by his asbestosis, polycythemia vera, and CAD; she noted that the Veteran was diagnosed with low testosterone since the 1990’s and has been treated for that since then. She further noted that the Veteran was treated for decreased libido in 2004 and had low testosterone in 2005 lab reports. The Veteran also had hypogonadism “since years,” which was the likely cause of his erectile dysfunction, even though he had other possible risk factors including age, history of alcohol use in the past, hypertension, hyperlipidemia (high cholesterol), heart disease, sleep apnea, obesity, history of back injury and surgery for it, and medications for different health conditions over the years. Without otherwise providing a rationale, she concluded that the Veteran’s erectile dysfunction was less likely than not caused by his service-connected disabilities. She again noted all of those risk factors, including heart disease, respecting aggravation, and concluded that with the Veteran’s hypogonadism and use of Levitra and testosterone gel which helped his condition, it was less likely than not that the Veteran’s erectile dysfunction was aggravated by his service-connected disabilities. The Board notes that the Veteran is service-connected for CAD, a noted form of heart disease; the examiner explicitly noted that it was a risk factor in both causation and aggravation of erectile dysfunction in her opinion. Without further explanation, she concluded that the Veteran’s hypogonadism and not his service-connected heart disease was the cause of his erectile dysfunction. The Board additionally notes that the examiner did not discuss whether the Veteran’s hypogonadism was caused or aggravated by his service-connected disabilities. Thus, the obtained medical opinion is inadequate. As the February 2018 medical opinion is inadequate, a remand is necessary in order to obtain an adequate addendum opinion from an examiner that has not previously participated in this case. See Id. As noted in the previous Board remand, the asbestosis claim is intertwined the above remanded claims and must also be remanded at this time. See Parker v. Brown, 7 Vet. App. 116 (1994) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Furnish to the Veteran and his representative a statement of the case with regard to the claims for increased evaluation and an earlier effective date for the award of service connection for CAD, and entitlement to TDIU prior to November 13, 2013. The issues should be returned to the Board only if a timely substantive appeal is received. 2. The AOJ should ensure that the claims file is provided to a gastroenterologist who has not previously participated in this case for an addendum opinion as to whether any of the Veteran’s gastrointestinal disorders are caused or aggravated by his service connected disabilities. Initially, the examiner should state all gastrointestinal disorders found in the record, to include GERD and/or hiatal hernia. Then, for any gastrointestinal disorder found, including GERD and hiatal hernia, the examiner should opine whether those disorders at least as likely as not were either (a) caused by; or, (b) aggravated by the Veteran’s service-connected asbestosis, polycythemia vera, and coronary artery disease, to include any medications used to treat those disabilities. In addressing the above, the examiner should address any previous VA medical opinions, including the February 2018 VA medical opinion, as appropriate. The examiner should also consider any lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale that clearly articulates the reasoning for all conclusions reached. 3. The AOJ should ensure that the claims file is provided to an appropriate physician who has not previously participated in this case for an addendum opinion as to whether any of the Veteran’s erectile dysfunction at least as likely as not were (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected asbestosis, polycythemia vera, and coronary artery disease, to include any medications used to treat those disabilities. In addressing the above, the examiner should address any previous VA medical opinions, including the February 2018 VA medical opinion; in particular, the examiner should address that examiner’s notations that the Veteran’s service-connected heart disease (CAD) is a risk factor for erectile dysfunction. The examiner should also consider any lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should consider any other pertinent evidence of record, as appropriate. (Continued on the next page)   All findings should be reported in detail and all opinions must be accompanied by a clear rationale that clearly articulates the reasoning for all conclusions reached. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel