Citation Nr: 21007066 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-23 530 DATE: February 8, 2021 ORDER Entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to an initial rating in excess of 10 percent prior to September 17, 2020 for lumbar spine degenerative joint disease, and in excess of 20 percent thereafter is remanded. FINDING OF FACT The Veteran’s erectile dysfunction had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1990 to March 1994 and March 1996 to July 2012. His decorations include the Combat Action Ribbon. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the April 2019 rating decision, in part, granted a temporary 100 percent disability rating for the Veteran’s lumbar spine, effective June 15, 2018 through August 31, 2018, and resumed the initial 10 percent rating effective from September 1, 2018. The Veteran testified before the undersigned in September 2018. In June 2019, the Board remanded the matter for additional development. 1. Entitlement to service connection for erectile dysfunction is granted. The Veteran has asserted that his erectile dysfunction had its onset in service, or alternatively, is secondary to his service-connected disabilities, to include medication to treat his disabilities. See May 2012 VA examination; see also September 2018 Board hearing transcript. As direct service connection is warranted, only that theory of entitlement will be addressed in the instant decision. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran has a current diagnosis of erectile dysfunction. See September 2020 VA examination report. Thus, element one of service connection is met. Regarding elements two and three, in-service incurrence of an injury and nexus, the Veteran’s service treatment records (STRs) are silent for complaints, diagnosis, or treatment of erectile dysfunction; however, the Veteran maintains that his erectile dysfunction began during active service and that it has been continuous ever since. Notably, the May 2012 pre-discharge VA examination notes erectile dysfunction with onset in April 2011. As such, the Board finds the Veteran’s statements regarding the onset of his erectile dysfunction to be credible and competent. Additionally, he has competently and credibly reported that he has continued to experience erectile dysfunction since that time. Furthermore, the September 2020 VA examiner opined that the Veteran’s erectile dysfunction began during active duty. Thus, all necessary elements met, and service connection for erectile dysfunction is warranted on a direct basis. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND 2. Entitlement to service connection for a left shoulder disorder is remanded. 3. Entitlement to service connection for a right shoulder disorder is remanded. The September 2020 VA examination includes a diagnosis of bilateral shoulder impingement syndrome and rotator cuff tendonitis. In providing a negative opinion, the VA examiner indicating that there were no in-service complaints of bilateral shoulder pain other than in February 2012, which was “self-limiting and resolved after retirement.” However, a review of the Veteran’s STRs reveals a diagnosis of mild bilateral impingement shoulder in February 2011. On his February 2012 separation Report of Medical History, he checked “yes” for painful shoulder. As such, an addendum opinion is required on remand. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding that medical opinions based on inaccurate factual premise have no probative value). Additionally, an October 2018 private treatment record reflects a complaint of chronic bilateral shoulder pain. Dr. K.B. provided the Veteran medical literature indicating that neck pain can move to the shoulders. As such, a remand is required to obtain an addendum opinion to determine whether his bilateral shoulder disorder is related to his active service, or is caused by or aggravated by his service-connected cervical spine disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 414 (2013). 4. Entitlement to an initial rating in excess of 10 percent prior to September 17, 2020 for lumbar spine degenerative joint disease, and in excess of 20 percent thereafter is remanded. Review of the record reveals that the Veteran underwent VA back examination in March 2019; however, the examination does not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should “estimate the functional loss that would occur during flares.”). In accordance with the June 2019 Board remand directives, the Veteran was afforded a VA examination in September 2020. The September 2020 VA examination report relates that the Veteran denied flare-ups but also reflects that he essentially identified and described flare-ups while discussing his current symptoms, to include aggravated back pain caused by bending and lifting. See also September 2018 Board Hearing at 9-10. Thus, a remand is required for an addendum opinion that is complaint with Sharp. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Updated VA and private treatment records should be associated with the record. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then obtain an addendum opinion regarding the etiology of the Veteran’s bilateral shoulder disorder. No additional examination of the Veteran is necessary, unless the reviewing examiner deems otherwise. Following a review of the claims file, the examiner should address the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral shoulder disorder had its onset in or are otherwise related to service, to include as the result of the cumulative impact of physical training and carrying weapons during such service related to his military occupational specialty (MOS) as a maintenance management specialist and motor vehicle operator? In addressing this question please discuss: (1) the service treatment record reflecting diagnosis of mild impingement bilateral shoulders in February 2011 and the Veteran’s complaint of bilateral shoulder pain in February 2012; (2) the Veteran’s testimony as to shoulder problems starting during service attributed to 20 years of hiking, martial arts, physical training, and carrying heavy weapons; and (3) his reports of continuous shoulder pain since service. In addressing this question, the examiner must assume items 2-3 as true, even despite the absence of “objective documentation.” b) Please state whether a nexus between the Veteran’s bilateral shoulder impingement syndrome and rotator cuff tendonitis (see September 2020 VA examination report) and service is medically consistent with the symptomatology reported by the Veteran in items (2)-(3) above. c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder disorder is proximately due to his service-connected cervical spine disability. d) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder disorder is aggravated (worsened beyond natural progression) by his service-connected cervical spine disability. In addressing secondary service connection, please address the October 2018 private medical record (received by VA on 11/13/2018, page 9) indicating that chronic neck pain “may move to your arms, back or shoulders.” Additionally, please note that the cervical spine disability need not be diagnosed or service-connected at the time the bilateral shoulder disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then obtain an addendum opinion addressing the severity of the Veteran’s back disability during a flare-up. No additional examination is necessary, unless the examiner determines otherwise. The examiner is asked to address the following: Considering the Veteran’s reported history, his September 2018 Board Hearing testimony at 9-10, and his March 2019 and September 2020 VA examination reports, please provide an opinion describing functional impairment of the Veteran’s back during flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, and report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. If an examination is needed for this determination, one should be scheduled. A complete rationale shall be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.