Citation Nr: 21067046 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-55 664 DATE: November 3, 2021 REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a sleep disability, to include sleep apnea, is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a rating in excess of 20 percent for peptic ulcer disease with duodenal ulcer status-post partial gastrectomy and gastroduodenostomy is remanded. Entitlement to initial ratings in excess of 50 percent prior to August 30, 2019, and 70 percent from that date for adjustment disorder is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to May 30, 2017, is remanded. Entitlement to an effective date earlier than May 30, 2017, for the grant of a 40 percent rating for lumbosacral spine degenerative disc disease with strain and wedge deformity is remanded. REASONS FOR REMAND The Veteran had active service from August 1974 to August 1977 and from October 1977 to December 1980. In June 2019, the Board issued a decision denying the appeals for entitlement to service connection for a sleep disability, entitlement to service connection for erectile dysfunction, entitlement to a higher rating for the service-connected peptic ulcer disease, and entitlement to an earlier effective date for the grant of a 40 percent rating for the service-connected lumbosacral spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 memorandum decision, the Court vacated the June 2019 Board decision as to those issues and remanded them for further consideration. The June 2019 Board decision also denied claims for entitlement to service connection for a left shoulder disorder, entitlement to service connection for a right shoulder disorder, and entitlement to service connection for cervical spine degenerative arthritis, claimed as a neck condition. The Court affirmed those denials in the January 2021 memorandum decision. Therefore, those issues are no longer on appeal. The June 2019 Board decision remanded the issues of entitlement to service connection for a left hip disorder, entitlement to service connection for right hip degenerative arthritis, entitlement to higher initial ratings for adjustment disorder, and entitlement to entitlement to a TDIU. In a June 2020 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU from May 30, 2017. The issue of entitlement to a TDIU prior to May 30, 2017, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. The AOJ obtained an opinion as to the Veteran's claimed right and left hip disabilities in June 2020. That opinion is adequate as to the theories of direct service connection and service connection on a secondary basis as caused by or proximately due to a service-connected disability. However, the opinion does not address whether the Veteran's claimed right and left hip disabilities may have been aggravated by his service-connected disabilities. Therefore, the issues must be remanded to obtain such an opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). 3. Entitlement to service connection for a sleep disability, to include sleep apnea, is remanded. The Veteran seeks entitlement to service connection for a sleep disability, to include sleep apnea, which he contends is either directly related to his active service or is secondary to his service-connected adjustment disorder or medications he takes for his service-connected disabilities. The record shows that the Veteran has been diagnosed with obstructive sleep apnea. The Board finds that the threshold for providing an examination as to the claim have been met, and that the issue must therefore be remanded so that the Veteran may be provided a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 4. Entitlement to service connection for erectile dysfunction is remanded. In the January 2021 memorandum decision, the Court found that it is not apparent from a February 2017 VA male reproductive system conditions examination report that the Veteran was examined and "thus it is not clear how the examiner was able to adequately describe the appellant's disability in sufficient detail." The Court therefore remanded the issue "for the Board to seek clarification of the February 2017 VA examination report". On further review, the Board finds that the February 2017 VA examination report is inadequate for decision-making purposes. The examiner concluded that the Veteran does not have and has not ever been diagnosed with a condition of the male reproductive system, to include erectile dysfunction, because "[r]eview of available medical records does not ascertain a diagnosis of erectile dysfunction nor any rx for this condition ever given". The examiner did not explain why a diagnosis could not be rendered based on the in-person examination of the Veteran or on the Veteran's competent lay statements. Therefore, the Board finds the February 2017 VA examination to be inadequate for decision-making purposes, and that the issue must be remanded so that the Veteran may be provided another VA examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 5. Entitlement to a higher rating for peptic ulcer disease with duodenal ulcer status-post partial gastrectomy and gastroduodenostomy is remanded. In the January 2021 memorandum decision, the Court found that November 2016 and February 2017 VA stomach and duodenal conditions examiners "paradoxically noted that though the appellant was still taking ranitidine, he was experiencing no symptoms or any other physical manifestations" of his service-connected peptic ulcer disease. The Court therefore found that a remand was required so that the Board could seek clarification of the November 2016 and February 2017 VA examinations. The Board finds that, in accordance with the January 2021 memorandum decision, the issue must be remanded so that the Veteran may be provided a VA examination to determine the current nature and severity of his service-connected peptic ulcer disease and to clarify the findings in the November 2016 and February 2017 VA examinations. 6. Entitlement to higher initial ratings for adjustment disorder is remanded. 7. Entitlement to a TDIU prior to May 30, 2017, is remanded. 8. Entitlement to an effective date earlier than May 30, 2017, for the grant of a 40 percent rating for lumbosacral spine degenerative disc disease with strain and wedge deformity is remanded. The Veteran reported to his VA treatment providers in March 2020 that he was recently awarded Social Security Administration disability benefits with three years of backpay. Records pertaining to the Veteran's application for those benefits are potentially relevant to the remaining issues on appeal and must be obtained prior to adjudication of those issues. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right and/or left hip disability is at least as likely as not (50 percent probability or greater) aggravated beyond its natural progression by a service-connected disability, to include the service-connected lumbosacral spine disability and any altered gait that may have been caused by that service-connected disability. 3. Schedule the Veteran for a VA examination for his obstructive sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's obstructive sleep apnea at least as likely as not (50 percent probability or greater) related to his active service? If not, is the Veteran's obstructive sleep apnea at least as likely as not proximately due to a service-connected disability, to include the medications the Veteran takes for his service-connected lumbosacral spine disability and adjustment disorder? If not, is the Veteran's obstructive sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability, to include the medications the Veteran takes for his service-connected lumbosacral spine disability and adjustment disorder? 4. Schedule the Veteran for a VA examination for his claimed erectile dysfunction. The examiner must review the claims file. The examiner is asked to provide a response to the following: Does the Veteran have a diagnosis of erectile dysfunction? In making this determination, a conclusion merely stating that the record does not show that the Veteran has been diagnosed with erectile dysfunction and has not been prescribed medications for erectile dysfunction is not sufficient. The determination must be made based the Veteran's lay statements as to his symptoms, the in-person examination of the Veteran, and on a review of the record. If so, is the Veteran's erectile dysfunction at least as likely as not (50 percent probability or greater) related to his active service? If the above opinion is in the negative, is the Veteran's erectile dysfunction at least as likely as not proximately due to a service-connected disability, to include the medications the Veteran takes for his service-connected lumbosacral spine disability and adjustment disorder? If the above opinions are both in the negative, is the Veteran's erectile dysfunction at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability, to include the medications the Veteran takes for his service-connected lumbosacral spine disability and adjustment disorder? 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected peptic ulcer disease with duodenal ulcer status-post partial gastrectomy and gastroduodenostomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner must explain why the Veteran would be prescribed medications for the service-connected peptic ulcer disease if he has no current symptoms or any other physical manifestations of the disease. This request is in relation to the United States Court of Appeals for Veterans Claims' statement in its January 2021 memorandum decision that the November 2016 and February 2017 VA examiners "paradoxically noted that though the appellant was still taking ranitidine, he was experiencing no symptoms or any other physical manifestations" of his service-connected peptic ulcer disease. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.