Citation Nr: 21063285 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-22 041 DATE: October 13, 2021 ORDER Entitlement to service connection to erectile dysfunction based on aggravation is granted. The appeal for restoration of a 20 percent rating for lumbosacral strain with degenerative arthritis (lumbosacral strain) is granted; the 20 percent rating is restored, effective December 11, 2015. REMANDED Entitlement to service connection for erectile dysfunction based on causation is remanded. Entitlement to an increased rating in excess of 20 percent for lumbosacral strain is remanded. FINDINGS OF FACT 1. After resolving reasonable doubt in the Veteran's favor, his erectile dysfunction was aggravated by his service-connected cerebrovascular accident (CVA). 2. The VA examination used to justify the reduction from 20 percent to 10 percent for lumbosacral strain is inadequate. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for erectile dysfunction based on aggravation have been met. 38 U.S.C. §§ 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2021). 2. The criteria for restoration of a 20 percent rating for lumbosacral strain, effective December 11, 2015, have been met. 38 U.S.C. §§ 1155, 5107, 5112 (2018); 38 C.F.R. §§ 3.105, 3.344 (2021); Tucker v. Derwinski, 2 Vet. App. 201 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA). The issue related to service connection for erectile dysfunction was remanded in June 2020. The issue related to a reduction in the Veteran's rating for lumbosacral strain was denied by the Board in a June 2020 Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to a May 2021 Joint Motion for Partial Remand. The case is once again before the Board and has been reassigned to the undersigned. The Board has bifurcated the issue of service connection for erectile dysfunction based on aggravation as the grant herein may not be considered a full grant of the benefit sought. As discussed below, the Veteran's rating reduction has been reversed and his rating restored. Because the reduction stemmed from a claim for an increased rating, the Board has added entitlement to an increased rating for lumbosacral strain as an issue on appeal. 1. Entitlement to service connection for erectile dysfunction based on aggravation. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is diagnosed with erectile dysfunction and reported an onset of symptoms in 2003. See November 2013 VA examination. In July 2020, a VA examiner provided two opinions: the examiner opined that it was both at least as likely and less likely than not that the Veteran's erectile dysfunction was aggravated by his service-connected CVA. However, for both opinions, the examiner provided essentially the same rationale, just with a different conclusion. The examiner stated that urology records reflect that after the Veteran's CVA, he required a vacuum erective device (VED) after his medications stopped working. Given the contradictory opinions that have essentially the same rationale, the Board will resolve reasonable doubt in the Veteran's favor and find that his erectile dysfunction was aggravated by his service-connected CVA. As a result, service connection for erectile dysfunction based on aggravation is warranted. 2. Whether the reduction from 20 percent to 10 percent for lumbosacral strain, effective December 11, 2015, was proper. In a rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). If the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (reversing as to rating reduction and remanding for restoration of a rating where Board relied on an inadequate examination). As an initial matter, the Board notes that the Veteran's combined disability rating was not affected by the rating reduction. Additionally, the Veteran's rating was not in place for more than five years at the time of the reduction. Thus, additional procedures pursuant to 38 C.F.R. §§ 3.105(e) and 3.344 do not apply. After review of the record, the Board finds that restoration of the Veteran's 20 percent rating for lumbosacral strain is warranted. Specifically, the December 2015 VA examination used to support the reduction is inadequate. The Court has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing circumstances, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the Court clarified the requirements that must be met with respect to orthopedic disability examinations prior to a finding that an examination report is adequate. Id. The December 2015 VA examination was inadequate because it did not include passive range of motion measurements for the Veteran's back in weight-bearing and non-weight-bearing circumstances. In light of the inadequacy of the December 2015 VA examination report, the Board may not conclude that the evidence was adequate to support the rating reduction at issue. Thus, the reduction was improper, and the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction based on causation. The Veteran reported an onset of symptoms in 2003. See November 2013 VA examination. VA treatment records suggest a relationship between the Veteran's service-connected hypertension and his erectile dysfunction. See November 2011 VA treatment records (discussing the Veteran's hypertension, non-service-connected diabetes, and erectile dysfunction and stating that the "etiologies" of erectile dysfunction were "obvious"). Indeed, records reflect that the Veteran's hypertension was severe and uncontrolled. See, e.g., July 2015 VA treatment records. The July 2020 VA examiner opined that the was no nexus to any of the Veteran's service-connected disabilities but did not discuss the November 2011 VA treatment records. As a result, the opinion is inadequate and remand for a new opinion related to hypertension is necessary. 2. Entitlement to an increased rating in excess of 20 percent for lumbosacral strain. The Veteran underwent VA back examinations in December 2015 and July 2019. Even though the examinations discuss range of motion measurement results on active and passive motion, it is unclear whether such measurement results were in weight-bearing and non-weight-bearing circumstances. See Correia v. McDonald, 28 Vet. App. 158, 165-170 (2016). Accordingly, remand is necessary for a new VA examination to obtain such information. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from August 2020 to the present. 2. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran if deemed necessary by a medical professional, to determine the nature and likely cause of his erectile dysfunction. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's erectile dysfunction was caused by his service-connected hypertension? Please explain why. 3. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbosacral strain. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.