Citation Nr: 20004842 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 14-44 198 DATE: January 22, 2020 REMANDED The claim of entitlement to an initial, compensable disability rating for erectile dysfunction (ED) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1973 to December 1996. This appeal to the Board of Veterans Appeals (Board) arose from a September 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, inter alia, granted service connection for ED, assigning a zero percent (noncompensable) disability rating, effective January 10, 2013. The Veteran disagreed with, and perfected an appeal as to, the assigned disability rating for ED. While the Veteran also timely disagreed with the disability ratings assigned for service-connected prostatitis, and hypothyroidism, due to Graves’ disease, and the continued denial of service connection for dry skin/rashes, he specifically excluded these issues from his December 2014 substantive appeal, on VA Form 9. Thus, these issues are not on appeal before the Board. In August 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. A hearing transcript is of record. As for the matter of representation, the Board notes that, while the Veteran was previously represented by Vietnam Veterans of America, in February 2017, he appointed Virginia Department of Veterans Services as his representative, as reflected in a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, executed and filed that same month. In December 2018, the Board remanded the Veteran’s higher rating claim for ED to the agency of original jurisdiction (AOJ), per his request, for initial review of medical evidence, to include the report of a June 2016 VA examination, associated with the claims file after his appeal was certified to the Board. Also in December 2018, the Board reopened a claim for service connection for pseudofolliculitis barbae (PFB), and remanded the service connection claim on the merits, together with a service connection claim for cervical spine disability, to the AOJ. Following the Board’s remand, in a September 2019 rating decision, the AOJ granted service connection for PFB and for cervical strain with degenerative arthriti, resolving the Veteran’s appeal as to those claims. Unfortunately, the Board finds that further AOJ action on the remaining higher rating claim for ED is warranted, even though such will, regrettably, further delay an appellate decision on this matter. The Board observes that service connection for ED was granted as secondary to the Veteran’s service-connected prostatitis. During his August 2015 Board hearing, the Veteran testified that he had abnormality of his penis in addition to his ED, consisting of an extreme curvature of the penis and pain when it was erect. He maintained that the deformity and pain had persisted for approximately seven years. He further requested a new examination to assess his reported symptoms. Upon review of VA examination reports of record, including the most recent June 2016 VA examination report, the Board notes that the VA examiners indicated that the Veteran’s penis was normal. Notably, while the June 2016 VA examiner noted that examination did not reveal any palpable plaque that might cause curvature, the examiner did not clearly address the Veteran’s reports of experiencing curvature or pain of the penis associated with his service-connected ED. As the VA examination reports do not fully address the Veteran’s reports with respect to the severity of his ED disability, the Board finds that remand is warranted to afford him a new VA examination to fully assess the severity of the disability. Cf. 38 C.F.R. § 4.2. Prior to arranging for the Veteran to undergo a new VA examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through August 2019. Thus, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since August 2019. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining higher rating claim on appeal. Adjudication of the claim should include consideration of whether a staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. This matter is hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since August 2019. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a new VA examination, by an appropriate medical professional, for evaluation of service-connected erectile dysfunction. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should fully describe the severity of the Veteran’s service-connected erectile dysfunction, reporting all current manifestations, and specifically addressing the presence of any deformity. The examiner should consider all pertinent medical and other objective records, as well as all pertinent lay assertions. Specifically, the examiner must address the Veteran’s reports of having experienced extreme curvature and pain in his penis when erect, over the last several years, and discuss whether these manifestations constitute a deformity. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the higher rating claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.