Citation Nr: 1808288 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-28 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence for a January 2013 aortobifemoral bypass surgery. 2. Entitlement to service connection for erectile dysfunction (ED), including as secondary to service-connected coronary artery disease/ischemic heart disease. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2011 and a June 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a videoconference hearing on the ED issue before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In February 2017, the Veteran was informed that the VLJ who conducted the hearing was no longer with the Board and he was provided the opportunity to have another hearing. In February 2017, the Veteran responded that he wanted another Board hearing. In May 2017, the Board remanded the claim for further evidentiary development, to include scheduling a hearing pursuant to the Veteran's request for another hearing. In a November 2017 letter, VA notified the Veteran that he was scheduled for a videoconference hearing before a member of the Board in December 2017. The Veteran failed to report for this scheduled hearing without good cause. VA has received no communication, written or otherwise, from the Veteran pertaining to the hearing. Because the Veteran has failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing will be considered withdrawn. 38 C.F.R. § 20.704(d) (2017). The issue of entitlement to service connection for ED is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's January 2013 aortobifemoral bypass surgery was for a nonservice-connected disability that has not been shown to be caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for a temporary total rating based on surgical or other treatment necessitating convalescence for the January 2013 aortobifemoral bypass surgery have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A. Duties to Notify and Assist With respect to the temporary total rating claim, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Legal Criteria and Analysis The Veteran seeks a temporary total rating for convalescence for the period following his January 2013 aortobifemoral bypass surgery. See February 2014 Statement in Support of a Claim and July 2014 Notice of Disagreement. A total disability rating (100 percent) will be assigned for convalescence without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted. Specifically, the Veteran must demonstrate that his service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. After reviewing the totality of the record, the Board finds the weight of the evidence is against the assignment of a temporary total rating. The crux of the matter is whether the January 2013 surgery was for a service-connected disability. At the time of the surgery, the Veteran was service-connected for coronary artery disease/ischemic heart disease, tinnitus, and residuals of a comminuted fracture of the right 5th metacarpal. A January 2013 VA discharge summary reflects that the Veteran's aortobifemoral bypass was for primary diagnoses of peripheral arterial disease and aortoiliac occlusive disease. The Veteran is not service connected for these disabilities. The Veteran has contended that his peripheral arterial disease is related to his ischemic heart disease, and as such the surgery was for his ischemic heart disease. A March 2017 VA opinion concludes that the Veteran's peripheral vascular disease is less likely than not proximately due to, the result of, or aggravated by the Veteran's service-connected heart disease. The examiner opined that the peripheral vascular disease was at least as likely as not the result of the Veteran's history of tobacco abuse. The examiner explained that while ischemic heart disease and peripheral vascular disease can have the common risk factor of tobacco abuse, ischemic heart disease does not cause peripheral vascular disease. The examiner indicated that the Veteran's greatest risk factor for peripheral vascular disease was his history of tobacco abuse. In a May 2017 addendum opinion, the examiner further explained that ischemic heart disease neither causes nor aggravates peripheral vascular disease. He indicated that while they can have a common etiology, such does not establish a causal or aggravation relationship between the two (one does not cause or aggravate the other). He stated that there was no mechanism for cause or aggravation of peripheral vascular disease by ischemic heart disease. The Board places great weight of probative value on the March 2017 opinion in combination with the May 2017 addendum opinion. These opinions in total reflect a review of the Veteran's history, a full review of the file, and consideration of pertinent medical principles. The only other opinion of record on the matter is the Veteran's opinion that his surgery was related to his service-connected ischemic heart disease. Laypersons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the question of what disability the Veteran's January 2013 surgery treated and whether peripheral vascular disease is caused or aggravated by the Veteran's service-connected heart disability are complex medical questions that require medical expertise. Therefore, the Board places no weight of probative value on the Veteran's statements in this regard. Further, even if the evidence showed that the Veteran's surgery was at least in part due to his service-connected heart disease, a preponderance of the evidence is also against a finding that convalescence from the surgery otherwise meets the criteria of 38 C.F.R. § 4.30. The Board has considered the Veteran's statements, testimony, and the post-surgical medical evidence. Such evidence does not demonstrate that at least one month of convalescence was required or indicate the presence of severe post-operative residuals warranting the assignment of a temporary total rating under 38 C.F.R. § 4.30. The Veteran has not identified how long he was convalescing following his January 2013 aortobifemoral bypass surgery. In his February 2014 request for a temporary total rating, the Veteran did not state what length of time he was convalescing after his surgery. Likewise, in his July 2014 Notice of Disagreement the Veteran did not allege that he was convalescing for any period following his surgery. A January 13, 2013 VA treatment note indicates that the Veteran lived alone and did not have any medical equipment at home. It was noted the discharge plan was to have no skilled needs required for the Veteran at the time of discharge, but that a daughter would like be involved in his discharge plan. Moreover, a January 2013 VA Discharge Summary shows that the Veteran was admitted on January 11, 2013, and discharged on January 19, 2013. This note states that the operation was normal and that the Veteran was ambulating without assistance. His condition was noted to be stable at discharge. In sum, the evidence does not show, nor does the Veteran contend, that convalescence or home confinement was medically required for at least one month following his January 2013 aortobifemoral bypass surgery. Further, the record does not support a finding that the Veteran sustained severe post-operative residuals such as incompletely healed surgical wounds, nor has he contended this. Moreover, the records do not show, and the Veteran has not alleged, that he had stumps of recent amputations, therapeutic immobilization of a joint, application of a body cast, or symptoms necessitating the use of a wheelchair or crutches. Further, there is no evidence that such procedure resulted in immobilization by cast, without surgery, of one major joint or more. Consequently, as a preponderance of the evidence is against a finding that the January 2013 surgery was for a service-connected disability and that it met the convalescence requirements for a temporary total rating under § 4.30, the claim must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to a temporary total rating for convalescence. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER A temporary total rating for the Veteran's January 2013 aortobifemoral bypass surgery is denied. REMAND A. Private Treatment Records In support of his ED claim, the Veteran submitted a September 2013 letter composed by Dr. K.M. It does not appear from the available evidence that any efforts have been made to obtain the records of treatment that the Veteran may have received from Dr. K.M. Because such records, if obtained, might contain information bearing on the Veteran's appeal, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). B. VA Examination Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the present case, the record contains a September 2011 VA opinion indicating, in effect, that it is unlikely that the Veteran's ED is related to his service-connected coronary artery disease/ischemic heart disease. Following this opinion, the Veteran submitted a September 2013 letter by Dr. K.M., which states that the Veteran has severe atherosclerotic cardiovascular disease and that he is on multiple medications for the condition. The physician further indicated that the Veteran's ED "is primarily due to his vascular disease." It is unclear from this opinion whether the physician is indicating that ED is related to the service-connected heart disease or nonservice-connected peripheral vascular disease; thus, it is inadequate for the Board to rely on in evaluating the Veteran's claim of service connection. Additionally, in June 2014 the Veteran submitted an article, which notes a connection between Agent Orange exposure and ED. At the February 2016 videoconference hearing, the Veteran also alleged that a medication he takes for his heart, Metoprolol, might be causing his ED. He also added that the September 2011 examiner failed to perform an adequate examination. The Board finds that the September 2011 VA opinion is inadequate, in light of the subsequent evidence submitted by the Veteran. Additionally, the September 2011 opinion only considered ED on a secondary service connection basis and not on a direct service connection basis, to include as due to herbicide agent exposure. Thus, a new examination and opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the Veteran's claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include records from Dr. K.M. Based on the response received, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 2. Obtain and associate with the claims file VA treatment records from October 2017 to the present. 3. After completing the development in 1 and 2, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his ED. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner is asked to provide an opinion on the following: A) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's ED is related to the Veteran's service, to include exposure to herbicide agents therein? B) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's ED was caused by the Veteran's service-connected coronary artery disease/ischemic heart disease, to include any medications taken for the condition (including Metoprolol)? C) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's ED was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected coronary artery disease/ischemic heart disease, to include any medications taken for the condition (including Metoprolol)? The examiner is asked to discuss the September 2013 letter from Dr. K.M, and the internet article submitted by the Veteran in June 2014. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs