Citation Nr: 21063413 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-04 272 DATE: October 14, 2021 ORDER Service connection for erectile dysfunction, as secondary to service-connected melanoma and non-Hodgkins lymphoma, is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for arthritis, to include rheumatoid arthritis, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's erectile dysfunction is caused by his service-connected melanoma and non-Hodgkins lymphoma. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction, as secondary to service-connected melanoma and non-Hodgkin's lymphoma, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from February 1969 to November 1970, including service in Vietnam. As to his Vietnam service, in a March 2020 VA memorandum the RO determined that the Veteran's exposure to herbicides was conceded based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied service connection for hypertension; arthritis, to include rheumatoid arthritis; a gastrointestinal disorder, to include gastrointestinal reflux disease (GERD); erectile dysfunction; and for a psychiatric disorder, to include PTSD. In September 2019, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In December 2019, the Board remanded the issues of entitlement to service connection for a psychiatric disorder, to include PTSD, and entitlement to a total disability rating based on unemployability (TDIU), for further development. In February 2020, the Board remanded the issues of entitlement to service connection for hypertension; arthritis, to include rheumatoid arthritis; a gastrointestinal disorder, to include GERD; and for erectile dysfunction, for further development. In October 2020, the Board remanded the issues of entitlement to service connection for a psychiatric disorder, to include PTSD; hypertension; arthritis, to include rheumatoid arthritis; a gastrointestinal disorder, to include GERD; erectile dysfunction, and entitlement to a TDIU, for further development. A March 2021 RO decision granted service connection and a 30 percent rating for an unspecified depressive disorder, effective January 6, 2014. Therefore, the issue of entitlement to service connection for a psychiatric disorder, to include PTSD, is no longer before the Board. A July 2021 RO decision granted service connection and a 10 percent rating for GERD, effective December 27, 2016, and granted service connection and a noncompensable rating for an anterior trunk surgical scar, status post a Nissen fundoplication, effective February 10, 2021. Therefore, the issue of entitlement to service connection for a gastrointestinal disorder, to include GERD, is no longer before the Board. Erectile Dysfunction 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309 (e) (Note 3.). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran is service-connected for melanoma and for non-Hodgkin's lymphoma. He is also service-connected for an unspecified depressive disorder; residual scars of melanoma, including a lymph node removal; GERD; an anterior trunk surgical scar, status post a Nissen fundoplication; bilateral hearing loss; and for tinnitus. The Veteran contends that he has erectile dysfunction that is related to service, to include as due to Agent Orange exposure. He specifically maintains that he was exposed to Agent Orange while serving aboard the USS Saint Paul. He reports that the USS Saint Paul docked in Da Nang harbor in the Republic of Vietnam, while he served on that ship from February 1969 to November 1970. The Veteran also indicates that he served aboard the USS Saint Paul in the Gulf of Tonkin. He further indicates that he has erectile dysfunction as a result of chemotherapy for his service-connected melanoma and non-Hodgkin's lymphoma. The Veteran served on active duty in the Navy from February 1969 to November 1970. His DD Form 214 indicates that he had one year, eight months, and twenty-seven days of foreign and/or sea service. He received decorations including the Vietnam Service Medal and the Vietnam Campaign Medal. The Veteran's service personnel records show that he served aboard the USS Saint Paul from February 1969 to November 1970. Based on a review of the record, the Veteran was presumably exposed to Agent Orange while in service. See a March 2018 RO formal finding. The Veteran's service treatment records do not show treatment for erectile dysfunction. Post-service private and VA treatment records, including VA examinations reports, show treatment for erectile dysfunction. The Board notes that the evidence of record includes opinions, as to the etiology of the Veteran's claimed erectile dysfunction, pursuant to a March 2020 VA male reproductive organ conditions examination report, with a June 2020 addendum, and, pursuant to a February 2021 VA male reproductive organ conditions examination report. A February 2021 VA male reproductive organ conditions examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he served on active duty in the Navy from 1969 to 1970, and that he served in the Naval Reserve from 1968 to 1974, and that he worked in a message center on a ship. He stated that he was in a port where Agent Orange was sprayed, as well as in Da Nang Harbor, on two occasions, where Agent Orange was used. The Veteran maintained that he presently suffered from erectile dysfunction. He indicated that he had been prescribed medication for his erectile dysfunction from a VA facility, but that his medication did not help with his symptoms and issues with erectile dysfunction from Agent Orange exposure. The Veteran reported that he had progressively worsening sexual dysfunction and reduced sex drive, with soft erections, trouble obtaining erections, and trouble maintaining erections. The diagnosis was erectile dysfunction. The examiner stated that the etiology of the Veteran's erectile dysfunction was after chemotherapy treatments for melanoma and non-Hodgkin's lymphoma. The examiner indicated that it was less likely than not (less than 50 percent probability) that the Veteran's erectile dysfunction was incurred in, or caused by, erectile dysfunction during service. The examiner stated that there were no service treatment records reflecting erectile dysfunction during service. The examiner reported that there was currently no presumptive regulation that includes erectile dysfunction as due to Agent Orange or exposure to environmental hazards. The examiner listed some of the current conditions presumed to be related to Agent Orange exposure, and stated that, therefore, a nexus had not been established. The examiner also maintained that the Veteran's separation examination was negative for erectile dysfunction, and that, therefore, a nexus had not been established. The examiner also indicated that the claimed erectile dysfunction was at least as likely as not (50 percent or greater probability) proximately due to, or the result of, the Veteran's service-connected disabilities, to include melanoma and non-Hodgkin's lymphoma. The examiner specifically maintained that the claimed erectile dysfunction was more likely than not (more than 50 percent probability) proximately due to, or the result of, the Veteran's service-connected melanoma, with retroperitoneal adenopathy, status post resection of the primary lesion, and systemic chemotherapy. The examiner reported that the Veteran had a melanoma on the back and that it was excised. The examiner stated that chemotherapy was noted to cause a loss of libido and difficulty achieving and maintaining an erection and referred to a medical treatise. The examiner reported that, therefore, a nexus had been established. The examiner stated that in a letter, the Veteran reported that his erectile dysfunction was the result of chemotherapy for his cancer of the lymph nodes, to include non-Hodgkin's lymphoma. The examiner stated that chemotherapy was noted to cause a loss of libido and difficulty achieving and maintaining an erection and referred to a medical treatise. The examiner maintained that, therefore, a nexus had been established. The examiner further found that the claimed erectile dysfunction was less likely than not (less than 50 percent or greater probability) proximately due to, or the result of, the Veteran service-connected bilateral hearing loss. The examiner stated that two conditions were unrelated, and that, therefore, a nexus had not been established. The examiner also indicated that the Veteran's erectile dysfunction was less likely than not aggravated by melanoma. The examiner reported that the Veteran's erectile dysfunction was a direct connection to the treatment, with chemotherapy, that worsened erectile dysfunction. The examiner further found that the Veteran's erectile dysfunction was less likely than not aggravated by non-Hodgkin's lymphoma. The examiner maintained that erectile dysfunction had a direct connection to the treatment, with chemotherapy, that worsened the erectile dysfunction. The examiner stated that the Veteran's erectile dysfunction was less likely than not aggravated by bilateral hearing loss. The examiner noted that there was no connection between hearing loss and erectile dysfunction, and that, therefore, a nexus had not been established. The Board notes that the examiner, pursuant to the February 2021 VA male reproductive organ conditions examination report, specifically found that the Veteran's erectile dysfunction was more likely than not proximately due to, or the result of, the Veteran's service-connected melanoma and non-Hodgkin's lymphoma. The Board finds that the opinions provided by the examiner, pursuant to the February 2021 VA male reproductive organ conditions examination report, in regard to the Veteran's claimed erectile dysfunction, are the most probative of record. The Board therefore finds that the Veteran's erectile dysfunction is due to, or a result of, his service-connected melanoma and non-Hodgkin's lymphoma. Thus, secondary service connection is warranted. See 38 C.F.R. § 3.310. As the Board has granted secondary service connection it need not address direct service connection, or any other theories for service connection, in this matter. REASONS FOR REMAND The remaining issues on appeal are entitlement to service connection for hypertension and for arthritis, to include rheumatoid arthritis, as well as entitlement to a TDIU. This case was remanded in October 2020, partly to afford the Veteran a VA examination (or telehealth interview, review of the record, etc., if an in-person examination was not feasible), to determine the onset and etiology of his claimed hypertension. The examiner was to specifically indicate if the Veteran had currently diagnosed hypertension. The examiner was to opine, as to whether it was at least as likely as not, that any currently diagnosed hypertension was related to, and or had its onset during, the Veteran's period of service, to include his presumed exposure to Agent Orange during service. The October 2020 remand also indicated that the examiner's opinions must include consideration that the National Academy of Sciences had upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Additionally, the opinion must also include consideration that in a study among U.S. Army Chemical Corps Veterans, VA researchers, found an association between both hypertension risk and exposure to herbicides, and hypertension risk and military service in Vietnam. The October 2020 Board remand further directed that the examiner must further opine as to whether the Veteran's service-connected disabilities, to specifically include his service-connected melanoma, bilateral hearing loss, and non-Hodgkin's lymphoma, caused or aggravated any currently diagnosed hypertension. The Board notes that this case was also remanded in October 2020, partly to afford the Veteran a VA examination (or telehealth interview, review of the record, etc., if an in-person examination was not feasible), to determine the onset and etiology of his claimed arthritis, to include rheumatoid arthritis. The examiner was to diagnose all arthritis of the joints, and specifically indicate if the Veteran had currently diagnosed rheumatoid arthritis. The examiner was to opine as to whether it was as at least as likely as not that any currently diagnosed arthritis of the joints, to include rheumatoid arthritis, was related to, and/or had its onset during, the Veteran's period of service, to include his presumed exposure to Agent Orange during service. The October 2020 remand also directed that the examiner specifically acknowledge and discuss the Veteran's reports of joint problems during and since service. Pursuant to the October 2020 Board remand, the Veteran was afforded a VA hypertension examination in February 2021. The diagnosis was hypertension, and the examiner provided negative etiological opinions, as to the issue of service connection for hypertension. In an April 2021 addendum, a different examiner provided an additional negative opinion. The Veteran was also afforded a VA non-degenerative arthritis and decompression illness examination. The examiner, who also performed the February 2021 VA hypertension examination, stated that for the claimed condition of arthritis, to include rheumatoid arthritis, the Veteran did not have a current diagnosis associated with the claimed condition. The examiner also stated that no rheumatoid arthritis was noted in history. The examiner provided negative opinions, as to the issue of entitlement to service connection for arthritis, to include rheumatoid arthritis. The Board finds that the opinions provided by the examiners, as to the issues of service connection for hypertension and for arthritis, to include rheumatoid arthritis, are inadequate. For example, the examiners, pursuant to the February 2021 VA hypertension examination report, with the April 2021 addendum, essentially addressed the requests by the Board in the October 2020 remand. The Board notes, however, that subsequent to the February 2021 VA hypertension examination, the Veteran was granted service connection for an unspecified depressive disorder. The Board notes that the examiners were not able to address whether the Veteran's service-connected unspecified depressive disorder caused or aggravated his claimed hypertension. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), a decision issued by the United States Court of Appeals for Veterans Claims (Court), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. The Board also notes that a VA study indicates a possible link between a psychiatric disorder (specifically PTSD), and heart disease. See http://www.research.va.gov/currents/spring2015/spring2015-8.cfm. The Board notes that the examiner, pursuant to the VA non-degenerative arthritis and decompression illness examination report, provided opinions that, essentially, solely addressed rheumatoid arthritis. For example, as to direct service connection, the examiner stated that the Veteran had been diagnosed with degenerative arthritis, and that there were no laboratory findings to confirm rheumatoid arthritis. The examiner indicated, that, therefore, no nexus had been established. In terms of the Veteran's reported pain in the joints during service, the examiner maintained that the Veteran had been diagnosed with degenerative arthritis, there were no laboratory findings to confirm rheumatoid arthritis, and, therefore, a nexus had not been established. The Board observes that the examiner provided no etiological opinions as to the Veteran's degenerative arthritis. The October 2020 Board remand specifically indicated that the examiner was to diagnose all arthritis of the joints, and to indicate if the Veteran had currently diagnosed rheumatoid arthritis. The examiner was to opine as to whether it was as at least as likely as not that any currently diagnosed arthritis of the joints, to include rheumatoid arthritis, was related to, and/or had its onset during, the Veteran's period of service, to include his presumed exposure to Agent Orange during service. In light of the above, the Board finds that the Veteran must be afforded VA examinations with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims file, as to his claims for service connection for hypertension and for arthritis, to include rheumatoid arthritis. Such examinations must be accomplished on remand. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, as the Veteran's claim for a TDIU rating is inextricably intertwined with his claims for service connection, those matters must be addressed together on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). In this regard, the Board notes, as the RO has already pointed out, that in a January 3, 2020, letter, the RO acknowledged the Veteran's TDIU claim and sent him a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). As the RO explained, completion and submission of this form is are essential to having VA adjudicate this claim. Indeed, the RO explained that without the form VA was unable to determine his level of education and whether he was gainfully employed. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for hypertension and for arthritis, to include rheumatoid arthritis, since May 2021. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms regarding his claimed hypertension and arthritis, to include rheumatoid arthritis. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Give the Veteran an opportunity to clarify his work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability. Advise the Veteran that a failure to complete and submit this form may result in a denial of this benefit. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the onset and etiology of his claimed hypertension. The examiner must specifically indicate if the Veteran has currently diagnosed hypertension. The examiner must opine as to whether it is as at least as likely as not that any currently diagnosed hypertension is related to, and/or had its onset during, the Veteran's period of service, to include presumed exposure to Agent Orange during service. The examiner must also specifically acknowledge any reports by the Veteran of symptoms he thought were due to his claimed hypertension during or since service. The examiner's opinion must include consideration that the National Academy of Sciences has upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. Additionally, the opinion must also include consideration that in a study among U.S. Army Chemical Corps Veterans, VA researchers, found an association between both hypertension risk and exposure to herbicides, and hypertension risk and military service in Vietnam. The examiner must further opine as to whether the Veteran's service-connected disabilities, to specifically include his service-connected unspecified depressive disorder, melanoma, bilateral hearing loss, and non-Hodgkin's lymphoma, caused or aggravated any currently diagnosed hypertension. 5. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the onset and etiology of his claimed arthritis, to include rheumatoid arthritis. The examiner must diagnose all arthritis of the joints, and specifically indicate if the Veteran has currently diagnosed rheumatoid arthritis. The examiner must opine as to whether it is as at least as likely as not that any currently diagnosed arthritis of the joints, to include rheumatoid arthritis, is related to and/or had its onset during, the Veteran's period of service, to include presumed exposure to Agent Orange during service. The examiner must also specifically acknowledge and discuss the Veteran's reports of joint problems during and since service. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, 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.