Citation Nr: 1808686 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-06 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure or contaminates in the water supply at Camp Lejeune or secondary to service-connected diabetes mellitus, type II, or service-connected ischemic heart disease. REPRESENTATION Veteran represented by: Seth C. Berman, Attorney ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from December 1965 to December 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the course of the appeal, the claims file was transferred to the RO in Louisville, Kentucky. The Veteran requested a Travel Board hearing at the local RO and was scheduled for May 2012. The Veteran's request to withdraw his hearing request was received in April 2012. In August 2012, the Board remanded the case for additional evidentiary development. The issue of entitlement to service connection for diabetes mellitus, type II, was granted in a September 2017 VA rating decision, which represents a full grant of the benefits sought so it is no longer on appeal before the Board. The remaining issue remanded by the Board in August 2012 has been returned to the Board for further appellate review. The appeal is REMANDED to the RO. REMAND Additional VA medical opinions are needed for the issue of entitlement to service connection for erectile dysfunction. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). First, the Veteran contends that his erectile dysfunction is due to herbicide exposure or contaminates in the water supply at Camp Lejeune during his period of active service. For purposes of this remand, the Veteran is presumed to have had herbicide exposure during his period of active service in Vietnam from August 1967 to July 1968 and exposure to contaminates in the water supply at Camp Lejeune during his period of active service at Camp Lejeune from April 1966 to May 1967, and there is no affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6), (7) (2017). Erectile dysfunction is not listed or contemplated among the diseases associated with certain herbicide agents nor contaminates in the water supply at Camp Lejeune, thus analysis for the claim on appeal on these presumptive bases is not warranted. See 38 C.F.R. § 3.309(e), (f) (2017). Nevertheless, when a claimed disorder is not included as a presumptive disorder, direct service connection may be established by evidence demonstrating that the disease was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After review of the record, the Board finds that medical opinions addressing service connection for erectile dysfunction on a direct basis as due to herbicide exposure or contaminates in the water supply at Camp Lejeune have not been provided in this case. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Second, the Veteran contends that his erectile dysfunction is secondary to his service-connected diabetes mellitus, type II, or service-connected ischemic heart disease. During the course of the appeal, the Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) examination for male reproductive system conditions in July 2017. Following the clinical evaluation and review of the claims file, the examiner rendered a diagnosis of erectile dysfunction, noted its etiology as psychosexual, and opined it is less likely as not caused by or the result of the service-connected diabetes mellitus, type II, and/or heart disability. After review of the record, the Board finds that medical opinions addressing service connection for erectile dysfunction on a secondary basis regarding aggravation have not been provided in this case. See 38 C.F.R. § 3.310 (2017). Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the July 2017 VA DBQ examination for male reproductive system conditions so supplemental opinions may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. For purposes of this examination, the examiner should presume the following: a) The Veteran had herbicide exposure during his period of active service in United States Marine Corps from December 1965 to December 1958, to include service in Vietnam from August 1967 to July 1968. b) The Veteran had exposure to contaminates in the water supply at Camp Lejeune during his period of active service in United States Marine Corps from December 1965 to December 1958, to include service at Camp Lejeune from April 1966 to May 1967. The examiner must opine as to the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is related to an incident of service, to include herbicide exposure and/or exposure to contaminates in the water supply at Camp Lejeune. It is not sufficient for the examiner to conclude that the claimed condition is not directly due to herbicide exposure and/or exposure to contaminants at Camp Lejeune because the condition is not on the lists of conditions presumptively exposed to such exposure. b) Whether it is at least as likely as not that the Veteran's erectile dysfunction was aggravated beyond its natural progression by his service-connected diabetes mellitus, type II. c) Whether it is at least as likely as not that the Veteran's erectile dysfunction was aggravated beyond its natural progression by his service-connected ischemic heart disease. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, the RO should review the medical opinions and examination report to ensure that the requested information was provided. If any opinion is deficient in any manner, the RO must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board of Veterans' Appeals 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).