Citation Nr: 21002206 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-28 367 DATE: January 13, 2021 REMANDED Entitlement to an initial compensable rating for erectile dysfunction (ED) for the period from January 31, 2018, is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty during the Vietnam era from August 1965 to November 1968. The matter of entitlement to TDIU and increased rating for ED came before the Board of Veteran’s Appeals (Board) from a February 2018 rating decision. The Board previously considered and denied the claims for TDIU and an increased rating for ED in June 2019, and the Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). The Veteran’s representative at the Court level and VA’s General Counsel agreed to a Joint Motion for Remand (JMR) to remand the Board’s decision. The Court granted the JMR in an Order dated August 2020. Both issues are now back before the Board. 1. An increased (compensable) rating for erectile dysfunction (previously rated as adenocarcinoma of the prostate status post prostatectomy with voiding dysfunction) is remanded. Unfortunately, the Veteran’s claim for a compensable evaluation of his service-connected erectile dysfunction must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. In December 2015 and in July 2016, the Veteran underwent VA examinations for erectile dysfunction, which culminated reports that omit any finding of either an internal or an external deformity of the penis, one of which is required by Diagnostic Code 7522 in order to warrant a compensable 20 percent evaluation. See Williams v. Wilkie, 30 Vet. App. 134, 138 (2018). Accordingly, as the current evidence of record does not contain such an assessment, an additional VA examination is required to determine whether such deformity exists, and thus whether a compensable evaluation is warranted in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). 2. Total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Based on the Court remand order, the Board feels additional development is needed in order to reach an informed decision on the matter. It was noted at Court that there needs to be some discussion of the Veteran’s education, training and work history as part of determining employability, in addition to the impact of service-connected disabilities. The record is very sparse in these areas. While remanding the intertwined issue of ED to the RO, the Veteran is afforded an additional opportunity to supplement the record in these areas if he chooses. The Court also held in its remand order that the Board must consider other elements as well in making a decision: In Ray, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has economic and noneconomic components, the latter of which focuses on the individual Veteran’s ability to perform the physical and mental acts necessary for such an occupation. Ray, 31 Vet. App. at 73; see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (clarifying that, for TDIU purposes, “[t]he question is whether the Veteran is capable of performing the physical and mental acts required by employment” (emphasis omitted)); 38 C.F.R. § 4.16. To comport with Ray, the Board must give attention to the relevant factors, as raised by the record, that may affect the Veteran’s physical and mental ability to perform the activities required by employment. Ray, 31 Vet. App. at 73. The Board in its last decision mainly considered the impact of prostate cancer on the Veteran’s employability. The impacts of the other service-connected disabilities: diabetes mellitus, left and right lower extremity neuropathy, erectile dysfunction, surgical scar and suprapubic painful scar’s impact on the Veteran’s employability also need to be considered. It has been at least two years since the Veteran’s most recent VA examination. Some of the other service-connected disabilities are even older. Time passage alone does not warrant medical updates to the file, but because there is no medical opinion of record that considers the combined impact of all the Veteran’s current disabilities together, the Board is using the opportunity to request a full picture of how all the Veteran’s currently service-connected disabilities together impact the Veteran’s employability physically and mentally. The Board believes the Veteran has not worked since March 2006, due to prostate cancer according to his October 2016 Application for Increased Compensation. There is no statement from the Veteran in that application detailing how his service-connected disabilities at that time caused him to stop working. This remand affords the Veteran an opportunity to supplement the record in this regard as well, with lay statements. For these reasons, the Board feels a remand to the RO is warranted to further develop the issue of TDIU entitlement before appellate review as well. The matter is REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). If the Veteran wishes to supplement information in the record on his education, training or work history, he can do so. 2. The Veteran should be scheduled for a VA examination with an appropriate clinician to determine the nature and severity of the erectile dysfunction. The examiner should be asked to discuss the different medical opinions in the file reference ED etiology: surgery for prostate cancer, or likely multifactorial to include complications of diabetes, prostate surgery and low testosterone. The examiner should provide a full description of the Veteran’s disabilities’ impacts on employability and report all signs and symptoms necessary for evaluating such impact. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review the record and offer an opinion that responds to the following: (a) The examiner should provide a full description of the ED and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (b) The examiner MUST discuss whether the Veteran has deformity of the penis, either internal or external. (c) To the extent possible, the examiner should identify any symptoms and functional impairments due to the erectile dysfunction disability alone and discuss the effect of the Veteran’s erectile dysfunction on any occupational functioning and activities of daily living. 3. Forward the Veteran’s claims file to an appropriate medical professional with respect to the issue of the Veteran’s entitlement to a TDIU. The ultimate purpose of the examination is to ascertain the functional impact of the Veteran’s service-connected disabilities. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should elicit and set forth the pertinent facts regarding the Veteran’s medical history, education and employment history, day-to-day functioning, and industrial capacity. All findings and conclusions should be set forth and accompanied by a rationale. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black 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.