Citation Nr: 1817784	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  16-55 313	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for erectile dysfunction, to include as due to service-connected urethro-prostatitis.

2.  Entitlement to service connection for hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to a compensable evaluation for urethro-prostatitis prior to March 31, 2015, and in excess of a 20 percent evaluation thereafter.


REPRESENTATION

Appellant represented by:	Kathy Lieberman, Esq.



ATTORNEY FOR THE BOARD

G. Slovick, Counsel


INTRODUCTION

The Veteran served on active duty from May 1951 to May 1953.

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2013 (erectile dysfunction and urethro-prostatitis) and June 2015 (hearing loss and tinnitus) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. §7107(a)(2) (2012).

The issues of entitlement to service connection for hearing loss and tinnitus and entitlement to increased ratings for urethro-prostatitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's erectile dysfunction is caused by his prostatitis.


CONCLUSION OF LAW

The criteria for service connection for erectile dysfunction have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Given the Board's favorable disposition concerning the Veteran's service connection claim for erectile dysfunction, the Board finds that no discussion of VCAA compliance is necessary at this time; any notice defect or duty to assist failure is harmless.

Legal Criteria, Factual Background, and Analysis

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service.  38 C.F.R. § 3.310.  In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities.  Buckley v. West, 12 Vet. App. 76, 84 (1998).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159 (a)(1).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that his current erectile dysfunction is secondary to service-connected urethro-prostatitis.  

While the Veteran's January 2009, April 2013 and March 2015 VA examiners have opined that the Veteran's erectile dysfunction is due to an unrelated disorder or to Peyronie's disease, their rationale for so finding is scant.  The January 2009 VA examiner stated that the most likely etiology of erectile dysfunction was "other cause" with no further rationale.  The April 2013 VA examiner found that erectile dysfunction was due to Peyronie's condition stating that the Veteran's urethro-prostatitis had resolved and the March 2015 VA examiner simply concluded that erectile dysfunction was due to Peyronie's disease "as per medical records." 

In contrast, the evidence also includes the findings of private internist Dr. A.A. who reviewed the Veteran's VA examinations and stated that it was her opinion that erectile dysfunction was more likely than not secondary to service connected urethro-prostatitis as opposed to Peyronie's disease.  Dr. A.A. explained that chronic prostatitis can lead to erectile dysfunction and cited medical treatise in support of her conclusion.  It was noted, too, that the Veteran was still on Prostasan which was associated with prostate symptoms and that the Veteran still had pelvic pain and that there was an association between prostatitis and sexual dysfunction which included individuals with chronic pelvic pain. 

Further, going against the findings of the VA examiners, in a May 2014 urology VA medical center treatment note, it was noted that the Veteran's Peyronie's disease had apparently resolved with conservative treatment but that the Veteran still had persistent erectile disorder.  

The evidence in favor of the Veteran's claim is at least in equipoise with the evidence against it.  Thus, given the evidence outlined above, the Board concludes that the Veteran's erectile dysfunction is secondary to his service-connected prostatitis, and service connection for erectile dysfunction is warranted.


ORDER

Service connection for erectile dysfunction is granted.


REMAND

Initially, the claims file includes many records in Spanish to include VA medical center treatment records which quote the Veteran's statements in Spanish.  Any Spanish treatment records or other records found must first be translated into English before the appeal is returned to the Board.

Further, in an October 2017 Board decision on an unrelated matter, the Board noted that Army Reserve records had been sought pursuant to a Joint Motion for Remand and Court Order and that the RO had failed to provide the Veteran with the proper notice following a request to obtain federal records.  

Upon receiving information that VA is unable to obtain Federal records, 38 C.F.R. § 3.159(e) mandates that VA provide a claimant with oral or written noticecontaining the following information: (1) the identity of the records VA was unable to obtain; (2) an explanation of the efforts VA made to obtain the records; (3) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and(4) a notice that the claimant is ultimately responsible for providing the evidence.  VA's duties to assist and notify the Veteran are not unique to the appeal considered in the October 2017 Board decision.  As such available records might have also informed the Veteran's hearing loss and tinnitus appeals, the appeal cannot be considered until the above information is provided to the Veteran.  

Finally, in a November 2017 statement, the Veteran asserted, through his representative, that his urethro-prostatitis has become worse since the last VA examination that evaluated him in March 2015.  Where the Veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination.  Olson v. Principi, 3 Vet. App. 480, 482 (1992).  Furthermore, according to VAOPGCPREC 11-95 (1995), a new examination is appropriate when there is an assertion of an increase in severity since the last examination.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Translate all Spanish documents in the claims folder to include any new treatment records associated with the file and statements quoted in VA medical center records  All Spanish language documents MUST be translated before any claims are returned  to the Board.

2.  Contact all appropriate repositories of records and obtain copies of any service treatment or personnel records from any period of Army Reserve service.  If any records are unavailable, the AOJ should prepare a memorandum of unavailability and notify the Veteran and his representative pursuant to the procedures outlined in 38C.F.R. § 3.159(e).  The AOJ should focus its records search from May 1953 to May 1958, as the Veteran's DD-214 indicates that, at discharge in May 1953, the Veteran had a 5-year Army Reserve obligation.

3.  Schedule the Veteran for a VA examination to determine the current severity of his service-connected urethro-prostatitis.  The claims file, including a copy of this remand must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination.  All indicated tests and studies should be accomplished and the findings then reported in detail.  The examiner must record all pertinent medical complaints, symptoms and clinical findings in detail.

4.  Then, complete any additional development warranted, then readjudicate the claims on appeal.  If any of the benefits sought are not granted in full, issue a supplemental statement of the case to the Veteran before returning the case to the Board.






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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 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).




______________________________________________
M.H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs