Citation Nr: 21014055 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-21 046 DATE: March 11, 2021 REMANDED Entitlement to service connection for scarring of the glans penis with complications of urethral stenosis, to include as under 38 U.S.C. § 1151, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to scarring of the glans penis with complications of urethral stenosis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1960 to May 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In relevant part, this appeal was previously before the Board in April 2019, at which time the Board remanded the claims to the agency of original jurisdiction (AOJ) to afford the Veteran a VA examination for the claimed conditions and to obtain nexus opinions with respect to the diagnosed conditions. The claims were returned to the Board in December 2019, at which time the Board denied the Veteran’s appeal for entitlement to service connection for scarring of the glans penis with complications of urethral stenosis and entitlement to service connection for erectile dysfunction. The Board found that the evidence of record did not establish a nexus between the Veteran’s service and his scarring of the glans penis, nor did the evidence demonstrate that the Veteran’s erectile dysfunction was either incurred in service or was caused by or aggravated by any service-connected disability. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (the Court); and the Court granted a Joint Motion for Remand (JMR) in October 2020, vacating the Board’s December 2019 decision and remanding the issues to the Board to ensure compliance with its April 2019 remand directives. For the reasons discussed below, the Board finds that another remand of the claims on appeal is necessary. This appeal has been advanced on the Board’s docket in accordance with 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for scarring of the glans penis with complications of urethral stenosis is remanded. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to scarring of the glans penis with complications of urethral stenosis, is remanded. The Veteran asserts that his penis deformity condition and erectile dysfunction were incurred in or are otherwise etiologically related to his active duty military service. He also contends that such disorders may have been caused by penile cancer, which he attributes to exposure to asbestos aboard the USS Kankakee. A remand is necessary before the Board can properly adjudicate the Veteran’s claims on their merits. Specifically, the collective medical opinions of record do not adequately address the Veteran’s lay assertions concerning the etiology of his claimed conditions, the Veteran’s relevant in-service medical treatment records concerning disorders of the penis/genitals, or a possible association between the symptoms the Veteran experienced in service and the disabilities he currently experiences. Additionally, a review of the record reveals that there may be outstanding VA and/or private medical records relevant to the claims on appeal; and efforts must be made to procure such records and associate them with the Veteran’s claims file. The Board must ensure compliance with the terms of its prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the present case, the Board finds that there has not been substantial compliance with its April 2019 remand directives. Additionally, the parties to the October 2020 JMR agreed that the Board erred by failing to address whether, under a sympathetic reading, the Veteran asserted a claim under 38 U.S.C. § 1151. See Ingram v. Nicholson, 21 Vet. App. 232, 257 (2007). In the April 2016 notice of disagreement, the Veteran stated that the surgeon at the Fargo VAMC “botched” his surgery in 1998 and he needed to repair the “botched” surgery. The Board finds that the Veteran has asserted a claim under 38 U.S.C. § 1151. Thus, on remand, the VA examiner must address the Veteran’s claim for compensation under 38 U.S.C. § 1151. Accordingly, the matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of all healthcare providers who have treated him for the disabilities on appeal, especially since the Board’s April 2019 remand. After securing any necessary releases, the AOJ should obtain the identified records. The AOJ should also obtain any and all outstanding VA and private medical treatment records, to include the 1998 pathology reports related to the removal of the Veteran’s squamous cell carcinoma, referenced in the Veteran’s December 2018 Board hearing. If any records are not available, the record should be annotated to reflect such, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the collection of all outstanding medical treatment records is complete, the AOJ should associate the records with the Veteran’s claims file. 3. Then, send the Veteran’s claims file to an appropriate VA clinician to obtain an additional medical opinion with respect to the claims on appeal. If a new examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s penis deformity condition was incurred in, caused by, or is otherwise etiologically related to his military service? The examiner should specifically address whether the Veteran has a diagnosis of HPV and, if so, the strain or type of HPV the Veteran has. If the examiner is unable to determine the strain or type of HPV the Veteran has and finds that an HPV test is required in order to provide an opinion, the examiner must order one. The examiner’s attention is directed to January 1963 service treatment records (STRs) documenting possible condylomata acuminata and/or venereal warts. The examiner is also asked to address the January 1963 in-service notation regarding the recommendation of circumcision and whether the recommendation was indicative of any signs or symptoms of phimosis, regardless of whether the medical records indicate a formal diagnosis of phimosis. The examiner is further asked to address the Veteran’s lay statements that he had penile cancer while on active duty service as a result of exposure to asbestos on the Naval ship he was stationed on, to include his described duties of removing and installing asbestos insulation aboard the ship. The examiner is reminded that the Veteran is competent to report in-service and post-service symptomatology. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s scarring of the glans penis with complications of urethral stenosis is proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or due to an event not reasonably foreseeable due to his 1998 surgery at the Fargo VAMC. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care proximately caused a veteran’s additional disability, it must be shown that the hospital care caused the Veteran’s additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran’s informed consent. See 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, the examiner should consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(2). (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was incurred in, caused by, or is otherwise etiologically related to his military service? (d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was caused by or aggravated by the Veteran’s penis deformity condition? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a “permanent worsening” of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation. If the examiner determines that the Veteran’s erectile dysfunction was not caused by or aggravated by the Veteran’s penis deformity condition, then the examiner is asked to identify, to the extent possible, the most likely cause of the condition and explain why this is so. The examiner is reminded that the Veteran is competent to report in-service and post-service symptomatology. (Continued on the next page)   The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.