Citation Nr: 21014457 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-47 828 DATE: March 12, 2021 . REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty in the U. S. Air Force from March 1989 to March 1993. The Board previously remanded the Veteran’s claim for erectile dysfunction for additional development in November 2019. The matter has now returned to the Board for appellate review. In the same November 2019 Board decision, the Board denied service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated that portion of the decision in a September 2020 Order, based upon a Joint Motion for Remand (JMR). 1. Entitlement to service connection for erectile dysfunction Pursuant to the November 2019 Board remand, the Veteran was afforded a VA examination in January 2020 to determine the nature and etiology of his claimed erectile dysfunction. At the time of the examination, the examiner determined that the claimed erectile dysfunction was less likely than not incurred in or caused by the Veteran’s active military service. In particular, the examiner further found that the surgical exploration performed on the Veteran’s right testicle during his military service was less likely to have caused the claimed erectile dysfunction because prior to service during his childhood, the Veteran had a right orchiopexy performed in 1975. The Board finds this opinion to be inadequate for purposes of determining service connection. Although the examiner found that the likely cause of the Veteran’s erectile dysfunction was from his testicular surgery prior to military service, the examiner did not consider whether there was a pre-existing testicle disorder or provide any opinion regarding aggravation in-service. In light of this inadequacy, the Board finds that a remand is necessary in order to obtain a VA examination to determine whether the Veteran’s current erectile dysfunction was aggravated beyond its natural progression by the Veteran’s service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (an examination must be based on an accurate factual premise). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD As discussed above, the Court vacated and remanded the Board’s November 2019 decision for action consistent with the September 2020 JMR. Specifically, the Court found that the Board erred in failing to satisfy its duty to assist in obtaining the Veteran’s VA treatment records and providing the Veteran with an adequate VA examination. As per the September 2020 JMR, remand is necessary to correct the VA’s duty to assist error. Specifically, the Board was found to have erred when it relied on an opinion of a May 2014 VA examiner which did not discuss evidence that indicated the Veteran was diagnosed with PTSD in June 2013 in rendering a negative etiological opinion. Moreover, the May 2014 VA examiner failed to state why a nexus did not exist between the Veteran’s acquired psychiatric disorder and his military service when the examiner acknowledged a stressful in-service event. Therefore, the May 2014 VA examiner’s opinion was found to be inadequate and remand is warranted for VA to comply with the duty to assist. The matters are REMANDED for the following action: 1. Obtain all outstanding, relevant treatment records and associate them with the claims file. To the extent needed, the Veteran should be asked to identify the places and approximate dates of treatment. All VA records should be obtained. If there are private records appropriate releases should be requested. All attempts to obtain records should be documented in the claims folder. 2. Only after obtaining the Veteran’s records as set forth above, the Agency of Original Jurisdiction (AOJ) should forward the claims folder to a VA psychiatrist or psychologist for an examination of the Veteran, to determine the nature and etiology of the Veteran’s acquired psychiatric disorder, to include PTSD. The claims file must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. The examiner must review all medical evidence associated with the claims file. All indicated tests and studies must be performed. The examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and state the stressor(s) that form the basis of the diagnosis. If the Veteran is diagnosed with an acquired psychiatric disorder other than PTSD, the examiner must opine whether it is at least as likely as incurred during or as a result of active service. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 3. The AOJ should arrange for a VA medical examination conducted by an appropriate examiner to determine the nature and etiology of the Veteran’s claimed erectile dysfunction. The examiner is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. It is noted that the Veteran reported a history of right testicular surgery prior to entry into service. The examiner should provide the following opinions: (a) Did the Veteran have erectile dysfunction or any testicular disorder, that clearly and unmistakably (i.e., undebatably) existed prior to his enlistment in-service? (b) If so, is there clear and unmistakable evidence that the pre-existing erectile dysfunction, or any testicular disorder, was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran’s period of active service? If the Veteran’s pre-existing erectile dysfunction, or any testicular disorder, did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? If there was no increase in pathology, that should be clearly set out. (c) If there is any erectile dysfunction, or any testicular disorder, that did not pre-exist his active service, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the erectile dysfunction, or any testicular disorder, had its onset during, or is otherwise etiologically related to, the Veteran’s active service. In providing the requested opinions, the examiner should refer to the pertinent evidence of record, including the Veteran’s documented in-service treatment for bilateral foot pain, as well as private and VA treatment records and the Veteran’s lay statements in support of his claims. The examiner must provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort 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. The examiner should also reconcile all prior reports, as necessary. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.