Citation Nr: 21075289 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 11-01 120 DATE: December 20, 2021 REMANDED Entitlement to service connection for erectile dysfunction (ED) with special monthly compensation (SMC) based on loss of use of a creative organ, to include as due to a service-connected disability, is remanded. Entitlement to disability ratings in excess of 40 percent prior to September 12, 2011, and 60 percent from February 1, 2013, for a service-connected left knee disability, status post total knee replacement (TKR), is remanded. Entitlement to disability ratings in excess of 10 percent prior to October 17, 2018, and 30 percent from December 1, 2019, for a service-connected right knee right knee disability, status post TKR, is remanded. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) prior to July 1, 2014 is remanded. Entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing or a special home adaptation grant is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1977 to September 1978. This case is before the Board of Veterans' Appeals (Board) on appeal of several Department of Veterans Affairs rating decisions. The issues of entitlement to: increased ratings for right and left knee disabilities, a TDIU rating prior to July 1, 2014, and eligibility for specially adapted housing were previously before the Board in February 2020 when they were remanded for additional development. The claim of entitlement to service connection for ED and SMC was remanded by the Board, in September 2019. In 2011 a hearing addressing the matter of the rating for the left knee disability was held before the undersigned. For the reasons explained below, the Board finds that the issues on appeal must be remanded again, for further development. 1. Entitlement to service connection for ED with SMC. In September 2019, the Veteran's claim for service connection for ED with SMC was remanded by the Board for a VA examination to determine the nature and etiology of his ED, to include whether it is due to medication prescribed for his service-connected knee and ankle disabilities. In a Supplemental Statement of the Case (SSOC) issued in July 2020, the RO continued the denial of the Veteran's claim, noting that he did not report to his scheduled examination. Evidence received since the SSOC, however, suggests that he did, in fact, report for examination and that it was the examiner who was absent that day. Consequently, the Board finds that development to reschedule a VA examination to determine the ascertain the nature and etiology of the claimed ED is necessary. 2. Entitlement to increased ratings for right and left knee disabilities. The Board notes as an initial matter that temporary total ratings were assigned for the Veteran's left knee disability from September 12, 2011 through January 2013, and from April 30, 2014 through June 2014. See 38 C.F.R. § 4.30. A total rating was also assigned for the right knee from October 17, 2018 through November 2019. The increased ratings claims are therefore limited to the periods on not including when total ratings were assigned, i.e., ratings in excess of 40 percent prior to September 12, 2011 and in excess of 60 percent from February 1, 2013 for the left knee, and ratings in excess of 10 percent prior to October 17, 2018 and 30 percent from December 1, 2019 for the right knee. On VA examinations in September 2021 and October 2021, conducted pursuant to the Board's September 2020 remand, the RO's continued denial of increased ratings in a subsequent SSOC; however, the Veteran submitted several arguments alleging perceived inadequacy of the examinations, and challenging the competency of the medical examiner. Specifically, the Veteran and his representative argue that the examiner does not have expertise in orthopedics. See October 23, 2021 Third Party Correspondence. In Francway v. Wilkie, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that, once a veteran raises a challenge to the competency of the medical examiner, the presumption of competency has no further effect, and the side presenting the expert must satisfy its burden of persuasion as to the examiner's qualifications. The Board must therefore make factual findings regarding the provider's qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. 940 F.3d 1304, 1308 (2019). As a veteran is obligated to raise the issue in the first instance, he/she must have the ability to secure from VA the information necessary to raise the competency challenge. Once the request for information as to the competency of an examiner is made, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist. 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013). While the Veteran's representative did not specifically request the qualifications of the September and October 2021 VA examiner who performed both examinations, Francway was cited in the communication arguing that the examiner was not competent as he was not an orthopedist, but rather, a rheumatologist. While the Board notes that the examination report indicates that the examiner is a doctor in ambulatory care, remand to provide the Veteran and his representative the examiner's qualifications is necessary. 3., 4. Entitlement to a TDIU prior to July 1, 2014, and eligibility for specially adapted housing or a special home adaptation grant. These issues are inextricably intertwined with the increased rating claims being remanded, and appellate consideration of the issues must be deferred pending the completion of the development on those matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are therefore REMANDED for the following actions: 1. Arrange for the Veteran to be scheduled for a VA examination to determine the nature and likely etiology of his current claimed ED. The examiner should elicit a complete history from the Veteran and must also review his claims file (including September 8, 1977 service treatment records showing an assessment of rule out venereal verruca and pertinent post-service VA and private treatment records) in conjunction with the examination. The examiner should provide medical opinions that respond to the following: (a) Identify the likely etiology of the Veteran's ED. Specifically, is it at least as likely as not (a 50% or greater probability) that it is related directly to his military service, and his genitourinary complaints and symptoms therein? (b) If not, is it at least as likely as not that the ED has been caused by medication (including with opiates, such as oxycodone taken for pain) the Veteran has taken for his service-connected knee and ankle disabilities? (c) If the ED is not found to be directly related to service, and not caused by medication prescribed for service-connected disabilities, is it at least as likely as not that the ED has been aggravated by medication (including opiates taken for pain) taken for service-connected knee and ankle disabilities? If so, identify, to the extent possible, the degree of disability due to such aggravation. A complete rationale should be included with every opinion provided as adjudicators are precluded from making medical determinations. 2. Provide the Veteran and his attorney the information needed to assess the competency of the VA examiner who conducted the Veteran's September and October 2021 examinations of his right and left knee disabilities, to include resume, curriculum vitae, list of publications, and list of specialties, as applicable. If the information requested cannot be provided, send correspondence to the Veteran explaining why that is the case. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.