Citation Nr: 1807478 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-31 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction as secondary to degenerative joint disease, thoracolumbar spine. 2. Entitlement to a rating in excess of 20 percent for traumatic arthritis, cervical spine. 3. Entitlement to a rating in excess of 20 percent for degenerative joint disease, thoracolumbar spine. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to November 1976 and from June 1977 to September 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues of ratings in excess of 20 percent for traumatic arthritis, cervical spine and degenerative joint disease, thoracolumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The weight of the evidence is against a finding that the Veteran's erectile dysfunction was incurred in or is otherwise related to service, to include as secondary to service-connected degenerative joint disease, thoracolumbar spine. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction, to include as secondary to degenerative joint disease thoracolumbar spine. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to provide claimants with notice and assistance in substantiating a claim. Regarding the duty to notify, VA provided the Veteran with a notice letter in December 2010. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. The Veteran was afforded VA examinations in February 2011 and June 2015. Given the above, the Board will proceed to the merits of the appeal. Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran contends that his erectile dysfunction was caused by his spine disability. However, the Board finds that the competent evidence of record weighs against a finding that his erectile dysfunction is related to his service connected spine disabilities. Service treatment records are silent for any complaints of erectile dysfunction. No erectile dysfunction problems were noted upon examinations, and no relevant complaints were raised in a report of medical history. 12/4/2013 STR-Medical, at 3-6. At a VA examination in February 2011, the Veteran related that his erectile dysfunction was related to his spine disability. The examiner determined that his erectile dysfunction was at least as likely as not caused by age related hormonal changes. 2/21/2011 VA Examination, at 1, 4. The Veteran was afforded another VA examination in June 2015. He could not recall when his disability began, but he was diagnosed in 2006. He was prescribed medication. The examiner determined that it was less likely than not that his diagnosed erectile dysfunction was aggravated beyond the natural progression by his degenerative joint disease of the thoracolumbar spine. It was further explained that the risk of erectile dysfunction increased with age, weight gain, and prostate conditions. Additionally, degenerative disc disease of the cervical, thoracic, and lumbar spine are not known to cause or aggravate erectile dysfunction. 06/19/2015 C&P Examination. The Board places the most weight on the opinion of the VA examiners. In this regard, the examiners reviewed the pertinent medical history and examined the Veteran. Given the depth of the examination reports, and the fact that the opinions were based on a review of the complete applicable record and relevant facts, the Board finds such opinions are probative and material to the Veteran's service connection claim and deserving of much weight. There is also no contrary medical evidence or opinion of record. The Board notes that the Veteran has related his erectile dysfunction to his spine disability. However, the record does not reflect that he has had the requisite training or skills to provide a competent statement regarding the etiology of a vascular disease. As such, the Board places no weight on his statement regarding the cause of his erectile dysfunction. The competent evidence of record also weighs against a finding that erectile dysfunction is directly related to service. As noted above, there is no documentation in service treatment records of any complaints for erectile dysfunction. Additionally, the Veteran does not contend that his erectile dysfunction is directly related to service. In light of the foregoing, the Board concludes that the preponderance of the evidence is against a finding of service connection for erectile dysfunction, to include as secondary to a service connected disability. For all the above reasons, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). ORDER Service connection for erectile dysfunction, to include as secondary to degenerative joint disease thoracolumbar spine, is denied. REMAND The record reflects that VA-generated evidence has been added to the claims file since the claim was last adjudicated in the March 2016 Supplemental Statement of the Case (SSOC). A new VA examination for the cervical spine was conducted in June 2017. Additionally, SSA records were added to the record in May 2017. The Veteran has not waived consideration of such evidence. The Board notes that Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 provides for an automatic waiver of initial AOJ review of evidence submitted by a Veteran or his or her representative where a substantive appeal is filed on or after February 2, 2013, unless the claimant or the claimant's representative request in writing that the AOJ initially review such evidence. 38 U.S.C. § 7105(e)(1). However, such is not the case here as the Veteran or his representative did not submit such evidence to VA. Furthermore, the SSA records indicate that the degenerative joint disease of the thoracolumbar spine may have worsened since the last VA examination. Consequently, it appears that the Veteran's symptoms may be more severe than those reflected in the February 2011 VA examination report. As such, the Board finds that a new VA examination is warranted. 38 C.F.R. § 3.327(a) (2017). Any updated VA (and/or private) medical records should also be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's claim file all outstanding VA treatment records (see March 2016 supplement statement of the case). Additionally, request the Veteran authorize the release of any relevant private records or submit them to VA. 2. After associating any VA records and any submitted private records and incorporating them into the claims file, schedule the Veteran for an appropriate examination for the purpose of determining the current severity of his degenerative joint disease, thoracolumbar spine and cervical spine disabilities. Any special tests deemed medically advisable should be conducted. Range of motion testing should be conducted, and if possible, the examiner should report (in degrees) the point in range of motion testing where motion is limited by pain. The examiner should express the additional functional limitation in terms of the degree of additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner is to test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of the above actions, readjudicate the issues on appeal. If any benefit sought remains denied, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs