Citation Nr: 21065669 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-59 980 DATE: October 27, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED) is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his erectile dysfunction (ED) is at least as likely as not related to his service- connected unspecified anxiety disorder (anxiety disorder). CONCLUSION OF LAW The criteria for service connection for erectile dysfunction (ED) have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to September 1992 and from February 1995 to October 1996 in the U.S. Army. He also had additional U.S. Army National Guard service from November 1993 to January 1995. He further served in the U.S. Army Reserves from October 1992 to November 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020 the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In June 2020, the Board remanded the case to the RO for additional development. As the requested development has been completed for the ED issue, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's appeal originally included a claim for service connection for bilateral hearing loss, tinnitus, a cervical spine disability, and an acquired psychiatric disorder. In an October 2020 rating decision, the RO granted service connection for left ear hearing loss, tinnitus, a cervical spine disability, and unspecified anxiety disorder. This is considered a full grant of the benefit sought on the appeal for the service connection claim of these disabilities. Holland v. Gober, 10 Vet. App. 433, 436 (1997). The record evidence shows that VA has attempted to obtain the Veteran's complete service treatment records (STR). Unfortunately, VA could not locate all STR records. When the Veteran's service treatment records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must notify and explain to the Veteran why VA could not obtain his service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). In this instance, the RO notified the Veteran on multiple occasions that it could not obtain portions of his STR and requested that he provide any records which were in his possession. The Veteran never responded. Having reviewed the record evidence, the Board finds that all available STR have been obtained and associated with the claims file, it is reasonably certain that additional records do not exist, and further efforts to obtain them would be futile Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Veteran testified that his ED began during his second active-duty service and possibly began during the first period of active-duty service. He has been told it is a symptom related to what the Veteran believes is posttraumatic stress disorder (PTSD). The Board notes a July 2020 VA examiner determined the Veteran's symptoms do not meet the DSM-5 criteria for PTSD but instead, his symptoms meet the criteria for unspecified anxiety disorder. See 38 C.F.R. §§ 3.304 (f), 4.125 (a). The Veteran is now service connected for his anxiety disorder disability. A different July 2020 VA examiner, citing medical literature, determined as likely as not, the Veteran's ED resulted from PTSD. Resolving all reasonable doubt in the Veteran's favor, the Board finds the second July 2020 VA examiner has determined that there is a medical nexus between the Veteran's psychiatric disorder and ED as a symptom. Although the VA examiner discussed PTSD, the VA examiner could reasonably assume the Veteran had PTSD. The Veteran filed the service connection claim for PTSD but received service connection for anxiety because the ultimate diagnosis remained with the scope of his claim. Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). At the time the second VA examiner prepared the examination report, he may not have known that the first VA examiner diagnosed unspecified anxiety disorder. There is nothing in the second July 2020 VA examiner's report to indicate that his opinions would change if he had known the Veteran's psychiatric disorder is unspecified anxiety disorder instead of PTSD. Stated another way, the VA examiner would still conclude the Veteran's current ED resulted from his psychiatric disability regardless of the specific DSM-5 diagnosis. There are also no opinions to the contrary. As the Veteran has established a current diagnosis and evidence that that it is proximately due to, the result of, or aggravated by his service-connected unspecified anxiety disorder, the Veteran's claim for service connection for PTSD is granted. 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran claimed service connection for bilateral hearing loss and the RO initially adjudicated the claim as bilateral hearing loss. The evidence from the March 2017 VA examination demonstrated the Veteran had left ear hearing loss but the right ear did not have a hearing loss for VA disability compensation purposes. See 38 C.F.R. § 3.385. The Board remanded the bilateral hearing loss claim for a VA examination because the March 2017 VA examiner concluded bilateral hearing loss is less likely than not related to service. The examiner stated the Veteran's service treatment records showed no significant threshold shift during service. The absence of a disability in service treatment records alone does not preclude service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). The lack of significant threshold shift may be probative concerning service connection, but the VA examiner did not explain its importance. For this reason, the Board directed a new VA examination with opinions and rationale that will allow the Board's decision to be a fully informed one. Upon remand, the RO issued an October 2020 rating decision granting service connection for the left ear hearing loss. Service connection for right ear hearing loss remains denied. With apologies to the Veteran, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection. While the August 2020 VA examination now demonstrates a right ear hearing loss and positive threshold shifts occurred at 2,000 and 3000 megahertz, the VA examiner concluded the right ear hearing loss is not related to service because he had normal hearing upon separation in September 1996. Again, the examiner did not explain the impact of this finding. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Once again, as the VA examiner provided an insufficient rationale, the claim for right ear hearing loss must be remanded for compliance with the Board's directives to provide the information necessary to make a fully informed decision. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Ongoing medical records should also be obtained. 2. Entitlement to service connection for a right shoulder disability. The Veteran asserts that he has a right shoulder disability related to service. Service treatment records do not document any complaint, findings, treatment, or diagnosis related to the right shoulder. Post-service treatment records document right shoulder atraumatic multidirectional subluxation and right rotator cuff capsule strain. After the Board's remand, a July 2020 VA examiner concluded the Veteran did not have a current right shoulder disability. He did not discuss the right shoulder atraumatic multidirectional subluxation and right rotator cuff capsule strain diagnoses. While the Veteran may not have a current chronic right shoulder disability, he may still have a valid claim if there is a diagnosis of a chronic right shoulder disability during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d) Accordingly, the Board has determined the Veteran's right shoulder disability claim should be remanded to determine it the right shoulder atraumatic multidirectional subluxation and right rotator cuff capsule strain is related to service. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his right ear hearing loss and right shoulder claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current right ear hearing loss disability arose during service or is otherwise related to service, to include as due to noise exposure from demolition explosions and carpentry and masonry tools. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner should explain why the Veteran's current right ear hearing loss is or is not merely a delayed response to in-service noise exposure. The examiner should also explain the reasoning for any opinion provided, to include the medical significance of any findings, such as the presence or lack of a positive threshold shift, as adjudicators are precluded from making medical findings. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current right shoulder disability, including right shoulder atraumatic multidirectional subluxation and right rotator cuff capsule strain had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner is instructed that under the law a current disability includes a disability or diagnosis occurring during the pendency of the claim or recent to the filing of the claim. Thus, even evidence generated prior to the claim must also be considered in determining a current disability The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.