Citation Nr: 21067953 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 13-07 722 DATE: November 8, 2021 REMANDED Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected diabetes mellitus, type II (DM) is remanded. REASONS FOR REMAND The Veteran had active duty service with the U.S. Air Force from January 1965 to August 1968. This case comes before the Board of Veteran's Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In February 2016, the Veteran had a videoconference Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. In July 2021 and September 2021, the Board notified the Veteran that the VLJ who heard his testimony in February 2016 was no longer with the Board and offered him an opportunity for another hearing before a VLJ who would participate in this decision. The Veteran declined to respond, and it presumed he does not desire an additional hearing. The Board has met its duty to afford the Veteran an opportunity to testify before a VLJ who will participate in his decision. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. In September 2016, the Board remanded this issue for an addendum opinion. The examiner was specifically asked to address the Veteran's contention that although he was not officially diagnosed with DM until 2006/2007, he had manifestations of the disease prior to that time. In May 2021, a VA addendum opinion was obtained. The examiner noted that the Veteran's ED predated DM by greater than one year per a March 2005 record. He noted that there was no evidence of aggravation of the Veteran's ED beyond its's natural course due to any cause. Records through May 2020 noted continued usage of Viagra, and there was no specific evidence regarding the failure of the medication, so he presumed it was beneficial. Furthermore, given the Veteran's age, should his ED become refractory to treatment and a change required to other modalities, this did not necessarily reflect aggravation beyond its natural progression. Therefore, it was less likely than not that the Veteran's ED had been aggravated beyond its natural course due to any cause. The examiner noted that there was no current examination located, and no current urologic evaluation. He indicated that his rationale was backed on the best available medical records. The examiner did not address the Veteran's contentions and based his opinion solely on medical records. Therefore, the May 2021 opinion is inadequate, and another VA examination is warranted to determine the nature and etiology of the Veteran's ED. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA male reproductive condition examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that the Veteran's erectile dysfunction was caused or aggravated by service or his service-connected diabetes mellitus, type II. The examiner must address that Veteran's contention that although he was not officially diagnosed with diabetes mellitus until 2006/2007, he had manifestations of the disease prior to that time and thus, he should be awarded service connection for ED, which was diagnosed in 2005. Further, the examiner is asked to address that Veteran's contentions in his December 2011 statement. 3. Then, readjudicate the remanded issue. If the benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.