Citation Nr: 21077335 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-07 696 DATE: December 29, 2021 REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left eye disability other than photophobia and irregular pupil, to include pinguecula, nuclear sclerosis cataracts, and arcus senilis, to include as compensation under 38 U.S.C. § 1151, to include as secondary to a service-connected left eye injury (photophobia and irregular pupil), is remanded. Entitlement to service connection for a back and bilateral lower extremity disabilities, to include as compensation under 38 U.S.C. § 1151, is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1990 to September 1997. The matters arise before the Board of Veterans' Appeals (Board) from a July 2015 rating decision. The Veteran testified before the undersigned Veterans' Law Judge at a November 2021 Board Hearing. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability, is remanded. At the November 2021 Board Hearing, the Veteran reported that his erectile dysfunction, diagnosed in 2005, first manifested in symptoms after he began taking Celexa and other medications for his service-connected psychiatric disability, which includes posttraumatic stress disorder (PTSD) and major depression. The Veteran's representative also referenced unspecified medical literature linking sexual dysfunction as a common side effect of psychiatric medication such as Celexa. See November 2021 Board Hearing Transcript, p. 2. The Veteran underwent a VA examination in July 2015 and a corresponding etiology opinion was obtained. The July 2015 VA examiner opined that the Veteran's erectile dysfunction is not proximately caused by or a result of the Veteran's TBI. No opinion was provided regarding any connection to the PTSD and related medication. Therefore, the claim must be remanded for the appropriate etiology opinion that additionally comports with the holding in Ward v. Wilkie. 2. Entitlement to service connection for a left eye disability other than photophobia and irregular pupil, to include pinguecula, nuclear sclerosis cataracts, and arcus senilis, to include as compensation under 38 U.S.C. § 1151, to include as secondary to a service-connected left eye injury (photophobia and irregular pupil), is remanded. The Veteran was service connected for the left eye injuries of photophobia and irregular pupil in a January 2014 rating decision. However, the Veteran has asserted that he should be service connected for additional, separate, new eye disabilities. See January 2015 Correspondence; see also August 2018 VA examination (showing new, separate diagnoses of pinguecula, nuclear sclerosis cataracts, and arcus senilis). The Board notes that the eye disability issue was initially characterized as entitlement to compensation under 38 U.S.C. § 1151 and that the Veteran initially attributed his new eye injuries to an assault that took place involving a VA employee. However, at the November 2021 Board Hearing, it was indicated that the Veteran's claim would be expanded to include entitlement to service connection for a left eye disability, to include as on a secondary basis. See November 2021 Board Hearing Transcript, p. 9; Robinson v. Shinseki, 557 F.3d 1355 (2009) (indicating the Board is required to address all theories of entitlement raised by the record). Therefore, the claim has been recharacterized to reflect as such. Turning to the merits of the claim, the Veteran underwent an VA eye examination in August 2018. The VA examiner found new, separate diagnoses of pinguecula, nuclear sclerosis cataracts, and arcus senilis. However, a VA opinion as to whether or not these new diagnoses (pinguecula, nuclear sclerosis cataracts, and arcus senilis) are related to the service-connected left eye injury (photophobia and irregular pupil) has not been yet obtained. Therefore, the claim must be remanded for a secondary etiology opinion. 3. Entitlement to service connection for a back and bilateral lower extremity disabilities, to include as compensation under 38 U.S.C. § 1151, is remanded. As an initial matter, the Veteran filed claims for entitlement to compensation under 38 U.S.C. § 1151 for bilateral lower extremity sciatica. However, at the November 2021 Board Hearing, the Veteran reported that his disabilities may have stemmed from an in-service assault at the Navy base in Long Beach in 1990-1991. See Board Hearing Transcript, p. 9. Thus, the Board will expand the claim to include the direct service connection theory. See Robinson, 557 F.3d at 1355 (indicating the Board is required to address all theories of entitlement raised by the record). Moreover, the Board notes that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). Therefore, even though the Veteran has appealed a claim involving bilateral lower extremities sciatica, based on the medical evidence of record, the Board has recharacterized this claim as a claim for service connection for a back and bilateral lower extremity disabilities, to account for all pertinent symptomatology. This recharacterization of the claim is reflected on the title page of this decision. Turning to the merits of the claim, the Veteran reported that he believes his back and bilateral lower extremities disabilities may stem from when he was jumped by gang members in Long Beach when he was in service, in around 1990-1991. See Board Hearing Transcript, p. 5; May 2018 VA Philadelphia medical record. However, the Veteran has not yet been afforded a VA examination and medical opinion opining on the etiology of his back and bilateral lower extremities disabilities. See 38 U.S.C. § 5103A (d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, upon remand, examinations and the appropriate etiology opinions must be obtained. The matters are REMANDED for the following action: 1. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of the Veteran's erectile dysfunction. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. After reviewing the claims folder, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's erectile dysfunction BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's erectile dysfunction was CAUSED BY HIS SERVICE-CONNECTED psychiatric disability, which includes posttraumatic stress disorder (PTSD) and major depression, or medicine taken for his service-connected psychiatric disability, including Celexa, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's erectile dysfunction underwent any incremental increase in disability, regardless of its permanence, due to the service-connected psychiatric disability, which includes PTSD and major depression, or medicine taken for his service-connected psychiatric disability, including Celexa, yes or no? The examiner is instructed to address and consider the Veteran's contention that his erectile dysfunction, diagnosed in 2005, first manifested in symptoms after he began taking Celexa and other medications for his service-connected psychiatric disability, which includes posttraumatic stress disorder (PTSD) and major depression. The Veteran's representative also indicated medical literature linking sexual dysfunction as a common side effect of psychiatric medication such as Celexa. See November 2021 Board Hearing Transcript, p. 2. 2. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of each of the Veteran's new, separate eye diagnoses of pinguecula, nuclear sclerosis cataracts, and arcus senilis. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. After reviewing the claims folder and examining the Veteran, for each of the Veteran's new, separate eye diagnoses of pinguecula, nuclear sclerosis cataracts, and arcus senilis, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's eye disability (pinguecula, nuclear sclerosis cataracts, and/or arcus senilis) BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's eye disability (pinguecula, nuclear sclerosis cataracts, and/or arcus senilis) was CAUSED BY HIS SERVICE-CONNECTED left eye injury (photophobia and irregular pupil), yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's eye disability (pinguecula, nuclear sclerosis cataracts, and/or arcus senilis) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected left eye injury (photophobia and irregular pupil), yes or no? 3. Schedule the Veteran for a VA examination with a VA examiner to determine the nature and etiology of his back and bilateral lower extremities disabilities. (a) The examiner must elicit from the Veteran a further and full account of his disabilities' symptoms, including the specific (or approximate month of the) onset date of the Veteran's symptoms and the duration of any continuity of symptomatology from onset to the present day. After reviewing the claims folder and examining the Veteran, the examiner is specifically instructed to provide the following information: (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's back and bilateral lower extremities disabilities BEGAN IN or is related to his time in the service, yes or no? (c) Does the Veteran's reports about symptoms align with how the disease or disability is known to develop. (d) The examiner must also specifically address the testimony given at the November 2021 Board Hearing, where the Veteran reported that he believes his back and bilateral lower extremities disabilities may stem from when he was jumped by gang members in Long Beach when he was in service, in around 1990-1991. See November 2021 Board Hearing Transcript, p. 5. 4. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.