Citation Nr: 21072541 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-04 903 DATE: December 3, 2021 REMANDED Service connection for erectile dysfunction, to include as secondary to service-connected hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1962 until his honorable discharge in August 1967. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 decision by the Houston, Texas, Regional Office of the United States Department of Veterans Affairs (VA). In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In July 2020, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to develop whether the Veteran was subject to the provisions of the Blue Water Navy Vietnam Veterans Act (BWN Act) of 2019. 38 U.S.C. § 1116A(c). On remand, the VA Regional Office conceded that the Veteran was subject to the BWN Act and granted him service connection for hypertension due to presumed exposure to herbicide agents. Thus, the VA Regional Office obtained a medical examination and opinion addressing whether the Veteran's erectile dysfunction was secondary to his hypertension. The case now returns to the Board. Consistent with the Board's remand directives, the Veteran received a VA-contracted examination in September 2021 assessing his claimed erectile dysfunction. At that time, the Veteran reported his erectile dysfunction symptoms began seven to eight years ago, which pre-dated his treatment for hypertension according to the examiner. He was not undergoing current treatment for his erectile dysfunction. At that time, his current symptoms included, "inability to maintain an erection to ejaculation approximately 60 to 65% of the time, anxiety with performance, and decreased libido." The Veteran declined a physical examination. The examiner opined that the Veteran did not have erectile dysfunction that was recognized by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The Board finds this opinion is insufficient. First, the examiner's opinion does not explain why the Veteran's symptoms do not meet the DSM-5 criteria. Second, the examiner failed to explain why she used the DSM-5 criteria, which applies to psychological disorders, where, in this case, the Veteran asserts his erectile dysfunction is caused by his hypertension and associated medications, a physical disorder as opposed to a psychological disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the September 2021 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's claimed erectile dysfunction. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding the following: (a.) Please opine whether the Veteran has had a diagnosis of erectile dysfunction at any point during the claim period, which began in 2015. The examiner is advised that the requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). If the examiner uses the criteria for a medical diagnosis of erectile dysfunction under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), then he/she must explain (i) why the DSM-5 is an appropriate basis to measure whether the Veteran has erectile dysfunction given that his claim is based on a physical disability, namely his hypertension and associated medications, and not a psychiatric disability, and (ii) what the criteria are for erectile dysfunction under the DSM-5. (b.) If the examiner determines that the Veteran has been diagnosed with erectile dysfunction at any point during the claim period: i. Whether it is at least as likely as not (50 percent probability or more) that the Veteran's erectile dysfunction had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include as due to herbicide-agent exposure, which VA has conceded. ii. Whether it is at least as likely as not (50 percent probability or more) that the Veteran's erectile dysfunction was caused by (proximately due to or as the result of) his service-connected hypertension and/or associated hypertension medications. iii. Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's erectile dysfunction was aggravated by his service-connected hypertension and/or associated hypertension medications. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) During the Veteran's January 2020 Board hearing, he testified that he had erectile dysfunction, which he believed was caused by his prescription medication for his hypertension. January 2020 Board Hearing Transcript, at 19. (b.) A January 10, 2017, VA Nursing Education Note in which a medical professional recorded that the Veteran reported he was having problems with erectile dysfunction The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his claimed disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of erectile dysfunction in service or the assertion that the Veteran's service-connected hypertension and/or associate medications led to his erectile dysfunction. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.