Citation Nr: 21070842 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 14-42 724 DATE: November 26, 2021 REMANDED 1. Entitlement to service connection for erectile dysfunction (ED) is remanded. 2. Entitlement to service connection for cervical disc disease is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1978 to February 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision. In November 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In May 2018, the case was remanded for further development. [A December 2020 rating decision granted service connection for migraine headaches, resolving the appeal in that matter.] On review of the record, the Board finds the medical opinions received in response to the May 2018 remand request less than fully responsive to the remand directives, and inadequate for rating purposes, requiring corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for ED. On June 2020 VA ED examination, the examiner opined that it was less likely than not that the Veteran's ED was related to his service. She explained that although postservice treatment records note treatment for ED, the Veteran did not seek treatment for ED or otherwise report symptoms of ED during service. In a May 2021 VA opinion, the provider opined that it was less likely than not that the Veteran's ED was caused or aggravated by his service-connected low back disability. He noted that a March 2018 lumbar spine MRI showed multilevel degenerative changes and diffuse disc bulge with bilateral facet and ligament hypertrophy, causing spinal stenosis and severe left neural foraminal narrowing. The provider explained that although there can be a correlation with lumbosacral disc disease and ED, typically this is seen with cauda equina syndrome, which causes bilateral lower extremity problems, urinary retention or bowel related constipation, and genital paresthesia. However, such is typically more of an acute presentation and is not documented in the Veteran's history. The provider further noted that the Veteran has other chronic, non-service-related disorders, including hypertension, diabetes, and chronic tobacco use which were more clearly causative for his ED. Regarding aggravation, the provider noted that there was no documented evidence of ED upon the Veteran's entry into service and that it would be rare to have this disorder manifest in a young man because normally there is a gradual deterioration of sexual functioning with age. He also noted that the Veteran's reported symptoms and objective finding on MRI do not "rise to this level." The Board finds that the June 2020 and May 2021 opinions are (individually and cumulatively) inadequate for rating purposes. The June 2020 opinion is inadequate because a likely etiology was not identified and whether the ED was caused or aggravated by a low back disability was not addressed. The May 2021 opinion is inadequate because although the provider opined that the Veteran's ED was more likely related to his non-service-connected hypertension, diabetes, and chronic tobacco use, he did not explain why this was so. Also, regarding aggravation, the provider seemed to limit his discussion of aggravation to whether or not the Veteran's ED was aggravated during service instead of opining whether there was any evidence that the ED was aggravated by a low back disability after service. Therefore, remand for a fully adequate medical advisory opinion is necessary. 2. Entitlement to service connection for cervical disc disease. On March 2020 VA cervical spine examination, the examiner opined that it was less likely than not that the Veteran's cervical disc disease was related to his service or caused and/or aggravated by his service-connected low back disability. She explained that the STRs are silent for any reports by the Veteran of neck pain during service and that a November 1989 PHA examination found no neck problems shown on clinical evaluation. The examiner indicated that she could not speculate regarding the cause of his current neck pain because she had no idea if in the 15 years or so after the Veteran's separation for service he might have had a motor vehicle accident, played contact sports, or had a work-related injury. The examiner further explained that the lumbar spine would not cause either cervical spine degenerative disc disease (DDD) or degenerative joint disease (DJD) because the lumbar spine does not put pressure on the neck. She also opined that the 2017 private opinion was not believable because no medical records were discussed, private opinions were usually paid for by the examinee, so there was bias in the opinion, and the 2012 VA opinion only discussed the left ankle and a finger disorder. In an August 2021 VA opinion, another provider opined that it was less likely than not that the Veteran's service-connected left shoulder disability caused or aggravated his cervical disc disease. He explained that it is well accepted that cervical radiculopathy may cause problems with shoulder functioning, but that the medical literature did not support that a shoulder disability can cause a cervical spine disorder. He related that it would be mere speculation to suggest that a left shoulder disability could aggravate a cervical spine disorder. Regarding direct service connection, the provider noted that an April 2011 cervical spine MRI showed cervical spine DDD at C 3-4 and C 6-7 which was almost 20 years after his service and opined that he could only speculate regarding the etiology of the Veteran's cervical disc disease. He noted that age and wear and tear are common causes of DDD and disc protrusion and cited to medical journal articles that discussed factors of disc degeneration. The Board finds that the March 2020 and August 2021 VA opinions are (separately and cumulatively) inadequate for rating purposes. The March 2020 opinion is speculative and cursory, and the examiner did not identify a likely etiology. Also, the examiner did not address the December 1988 STR when the Veteran was seen for head pain after an injury in a football game (or his lay statements recounting such event). The August 2021 opinion is inadequate because it did not address aggravation and although the provider opined that the cervical disc disease was more likely due to age and/or wear and tear, he did not explain why that was so. A remand for an adequate medical advisory opinion is necessary. 3. Entitlement to service connection for a left ankle disability. In a May 2018 remand, the Board noted that there were conflicting medical opinions in the record regarding the etiology of the Veteran's left ankle disability. A June 2012 VA examiner opined that the Veteran's left ankle disability was not due to an injury in service and explained that service treatment records (STRs) note a sprain, but that an X-ray was negative and there was no further notation of chronic sequelae of the injury. A January 2017 private medical provider related the Veteran's left ankle disability to an injury in service. Neither opinion was fully adequate, as each was conclusory, and neither discussed all factors bearing on the claim. The Board found that remand was necessary for a medical advisory opinion that reconciled the conflicting opinions and included adequate explanation of rationale. The March 2020 VA left ankle examiner provided multiple opinions regarding the etiology of the Veteran's left ankle disability. She opined that it was less likely than not that the left ankle disability was due to his service or caused or aggravated by a service-connected low back disability. The examiner indicated that she had reviewed the claims file, to include the previous remand and conflicting opinions, and commented that a private opinion is usually paid for by the claimant and subject to bias. She noted that left ankle range of motion testing on 1989 PHA examination showed no loss of range of motion and that the Veteran was not seen for at least 15 years after he got out of the military in 1991. The examiner explained that a 2011 left ankle MRI showed an old sprain of the anterior talofibular ligament (ATFL) which could have occurred at any time after he got out of the military by playing sports or just stepping off a curb improperly and opined that the Veteran's current left ankle disability was due to an inversion injury and was not due to his back disability. The opinions (separately and cumulatively) are inadequate for rating purposes because they are cursory and do not address aggravation, and no rationale was provided to support the asserted likely etiology (i.e., inversion injury). Therefore, remand for an adequate medical advisory opinion is necessary. 4. Entitlement to service connection for a left knee disability. On March 2020 VA knee examination, the examiner opined that the Veteran's left knee disability was less likely than not related to his service. She explained that although the Veteran reported a left knee injury in service, there was no record of such injury in the STRs, and he was not treated for any left knee concerns until 2005. Regarding the 2017 private opinion, the examiner opined that it was most likely paid for by the Veteran (and therefore was biased) and that the medical records were probably not reviewed. In an additional opinion, the March 2020 VA examiner opined that it was less likely than not that the Veteran's left knee disability was caused or aggravated by a service-connected low back disability. She noted that a February 2007 VA treatment record notes that the Veteran reported sudden onset of left knee pain and swelling with no known injury and because there was no evidence in the medical records that he had an abnormal gait prior to being seen with the acute swelling, it was less likely than not that his low back disability would cause acute swelling of his knee. The examiner also noted that a 2011 left knee MRI showed a medial meniscus tear and chondral defects of the distal femur, and that such injury was likely due to (unidentified) trauma. She also indicated that the Veteran used a cane for back pain and that although he had decreased left knee range of motion, such decrease in motion was not due to his back pain. The opinions are (cumulatively and separately) inadequate because a likely etiology was not identified, and aggravation was not addressed. Therefore, remand for an adequate medical advisory opinion is necessary. As the record reflects that the Veteran continues to receive ongoing treatment for the disabilities on appeal, including from VA and private providers, and records of such treatment may contain pertinent information, outstanding records of the treatment must be obtained and considered. Notably, VA records are constructively of record. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for ED, cervical spine, left knee, and left ankle disabilities, and to provide authorizations for VA to obtain updated to the present records of any private evaluations or treatment. Secure for the record complete clinical records of the evaluations and treatment from all providers identified (any not already associated with the record). If any private records identified are not received pursuant to a request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. Specifically secure for association with the record all outstanding (up to date) records of VA treatment the Veteran has received for ED, cervical spine, left knee, and left ankle disabilities. If any such records are unavailable, the reason for their unavailability must be explained for the record, and the Veteran should be so advised. 2. Then arrange for the Veteran's record to be returned to the May 2021 consulting provider (if that provider is not available, to another appropriate clinician (in urology), for a medical advisory opinion regarding the etiology of his ED. The entire record must be reviewed by the consulting provider. Based on a review of the record, the provider should offer an opinion that responds to the following [if the opinion sought cannot be provided without further examination of the Veteran, such should be arranged]: Identify the likely etiology for the Veteran's ED. Specifically, is it at least as likely as not (a 50% or better probability) that it was caused or aggravated (the opinion must address aggravation) by his service-connected low back disability, or another service-connected disability? [Since the Veteran is presumed sound for ED during service, the provider should address the occurrence of any aggravation, if any, postservice.] The provider must include rationale with all opinions, citing to supporting factual data as deemed appropriate. 3. Then forward the Veteran's record to an appropriate (e.g.in orthopedics) clinician other than the March 2020 examiner, and August 2021 opinion-provider for review and an advisory medical opinion regarding the etiology of his left knee, left ankle, and cervical spine disabilities, and specifically whether or not they are directly related to (were incurred during) his active service. [If further examination of the Veteran is deemed necessary such should be arranged.] Based on review of the record (and examination of the Veteran if found necessary), the provider should respond to the following: (a) Identify (by diagnosis) each left knee, left ankle, and cervical spine disability entity found. (b) Identify the likely etiology for each left knee, left ankle, and cervical spine disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the disability was incurred during the Veteran's active service? The provider must acknowledge the Veteran's reports of injury in service, to include a December 1988 STR that notes a head injury. (c) If a diagnosed left knee and/or left ankle disability is found to not be directly related to the Veteran's service, opine further whether it is at least as likely as not that such disability was caused or aggravated by (increased in severity due to) the Veteran's service-connected low back disability. [The opinion must address aggravation.] (d) If the opinion is that a service-connected disability did not cause, but aggravated, a left knee and/or left ankle disability, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. (e) If a diagnosed cervical spine disability is found to not be directly related to the Veteran's service, opine further whether it is at least as likely as not that it was caused or aggravated by (increased in severity due to) the Veteran's service-connected low back and/or left shoulder disabilities. [The opinion must address aggravation.] (f) If the opinion is that a service-connected disability did not cause, but aggravated, a cervical spine disability, quantify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. (g) If the opinion is that a diagnosed left knee, left ankle, or cervical spine disability was not incurred in service (and not caused or aggravated by a service-connected disability), identify the etiology that is considered more likely (and explain why that is so). The provider must include rationale with all opinions. If a requested opinion cannot be provided without resort to mere speculation, should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the provider does not have the requisite knowledge or training). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.