Citation Nr: 21004678 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 08-06 921A DATE: January 27, 2021 ORDER Entitlement to service connection for a back disability as secondary to right leg disability is granted. Entitlement to service connection for lumbar radiculopathy as neurological manifestation of back disability is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability is remanded. Entitlement to a rating in excess of 10 percent for residuals of an injury to the right leg (thigh) with arthritis of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his back disability is caused by his service-connected right leg disability. 2. The Veteran’s lumbar radiculopathy is caused by his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability as secondary to right leg disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for lumbar radiculopathy as secondary to a back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty October 1961 to October 1963 with additional periods of unverified service.   This case has a long procedural history.  The appeal was most recently before the Board in July 2018  when it was remanded for further development.  The Board finds there has been substantial compliance with the remand directives in connection with the claims decided here and the Board will proceed to adjudication.  Stegall v. West, 11 Vet. App. 268 (1998).  The Veteran testified at hearings before the undersigned Veterans Law Judge in November 2011 and December 2020; transcripts of those hearings are of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for a back disability as secondary to right leg disability The Veteran asserts that his back disability is secondary to his service-connected right leg disability. The Veteran’s right leg disability has been classified as residuals of an injury to the right leg (thigh) with arthritis of the right knee. While the October 2019 VA examiner said commented that in-service muscle injury to the right thigh had resolved, the examiner also noted that a prior medical opinion supports a connection between the right thigh condition and right knee arthritis and the it appeared that the effects of the right knee disability were considered in assigning the initial rating for the thigh disability. Accordingly, the Board will consider the Veteran’s right knee to be part of his service-connected right leg disability. The October 2006 VA examination shows diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. In a February 2010 opinion, a private examiner opined that it is at least as likely as not that the Veteran’s low back condition had been exacerbated by his deteriorating right knee condition. Additionally, in December 2020 the Veteran testified that his right leg limp made his back hurt. The Board notes that the October 2019 VA examiner provided a negative nexus opinion as to secondary service-connection. However, that opinion is inadequate because it was based on the improving nature of the Veteran’s thigh condition and the examiner’s incorrect conclusion that the right knee condition was not related to service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current back disability is caused by his service-connected right leg disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for lumbar radiculopathy as neurological manifestation of back disability The Veteran asserts that his diagnosed lumbar radiculopathy is a result of his now service-connected back disability. An October 2019 VA addendum opinion included a diagnosis of lumbar radiculopathy. Accordingly, as service connection for a back disability is granted above, and as the October 2019 VA examiner diagnosed lumbar radiculopathy, service connection for lumbar radiculopathy, as secondary to a back disability is granted. REASONS FOR REMAND Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability is remanded. The Veteran initially asserted that his erectile dysfunction was related to the neurological manifestation of his back disability and more recently argued that it could be related ot his service-connected hemorrhoids. See December 2020 hearing. Given the grant of service connection for the back and related radiculopathy, and the recent argument, an etiology opinion is necessary on remand. Entitlement to a rating in excess of 10 percent for residuals of an injury to the right leg (thigh) with arthritis of the right knee is remanded. The Decemebr 2019 VA examination reg does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran reported having flare-ups of his right leg disability, but the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. A new examination is necessary. Entitlement to TDIU is remanded. Because a decision on the remanded issues could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined.  A remand of the claim of entitlement to TDIU is required.  On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992).  The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any right leg and erectile dysfunction complaints since November.  After securing the necessary release, take all appropriate action to obtain these records, including records of VA treatment records since November 2019. 2. After the completion of the above, obtain a medical opinion (with examination or telehealth interview if deemed necessary by the provider) on the likely etiology of the Veteran’s erectile dysfunction. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should answer the following:     Is it at least as likely as not that the Veteran’s erectile dysfunction is (i) caused or (ii) aggravated by (defined as any increase in disability) a service-connected disability? Why or why not? His service-connected disabilities are: residuals of injury to right leg (thigh) with arthritis of the right knee; mood disorder; bilateral hearing loss; tinnitus, hemorrhoids; back disability; and lumbar radiculopathy. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.  If an opinion cannot be provided, the examiner should indicate why.   3. After the completion of (1), schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the current severity of his service-connected right leg disability. Copies of all pertinent records must be made available to the examiner for review. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups throughout the entire period on appeal. To the extent possible, the examiner should identify any symptoms and functional impairments due to his right leg disability alone and discuss the effect of the Veteran’s right knee disability alone on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 4.  After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU.   M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.