Citation Nr: 21023127 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-08 278 DATE: April 20, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED) is granted. REMANDED Issue of entitlement to a rating higher than 10 percent for chondromalacia of the right knee with history of arthritis and residuals of a right knee injury is remanded. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran’s ED is proximately due to or the result of his service connected cerebrovascular accident (CVA) residuals. CONCLUSION OF LAW The criteria for entitlement to service connection for ED as proximately due to or the result of his service-connected CVA residuals have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to November 1988 and March 1990 to June 1992. The Veteran also has National Guard service from June 1992 to July 2001. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2011 rating decision issued by the Department of Veterans Affairs (VA). See October 2011 Notice of Disagreement (NOD); January 2013 Statement of the Case (SOC); February 2013 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a June 2016 hearing. See June 2016 Hearing transcript. In August 2016, the Board remanded the claims for further development based on the Veteran’s report of worsening symptoms. August 2016 Board decision. In September 2017, the Board denied the Veteran’s claim of entitlement to a rating higher than 10 percent for his right knee disability. September 2017 Board decision. The Veteran appealed the September 2017 Board decision to the Court of Appeals for Veterans Claims (CAVC) and, through a Joint Motion for Remand, CAVC remanded the claim for further reasons and bases on whether the Veteran was provided an adequate VA examination for his right knee disability. See March 2018 CAVC decision. In July 2018, the Board remanded the claim to afford the Veteran another VA examination for his right knee disability. July 2018 Board decision. In February 2019, the Board remanded the claim again to afford the Veteran another VA examination for his right knee disability because the VA examination obtained on remand did not fully discuss the Veteran’s limitations during a flare up. February 2019 Board decision. In addition, the Board granted an increase rating for the Veteran’s service connected residuals of CAV with history of right-sided weakness and remanded the issue of entitlement to a separate compensable rating for ED associated with CVA residuals. Id. The Agency of Original Jurisdiction developed the evidence and denied the Veteran’s claims. January 2021 Supplemental Statement of the Case (SSOC). The claim is now back before the Board. The Board notes that the Veteran filed a June 2020 VA Form 10182, Decision Review Request: Board Appeal, for his claims of entitlement to a rating higher than 20 percent for residuals of cerebrovascular accident with history of right-sided weakness and a rating higher than 10 percent for right knee instability. Those claims are, thus, now appealed under the modernized review system, also known as the Appeals Modernization Act (AMA) and will be adjudicated in a separate decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2). Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. Entitlement to service connection for ED. The Veteran testified during the June 2016 hearing that he believes his CVA residuals causes his ED. See June 2016 Hearing testimony. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for: (1) a disability which is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (a)-(b); see also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Allen v, Brown, 7 Vet. App. 439 (1996) (en banc); Ward v. Wilkie, 31 Vet. App. 233 (2019). Generally, to prevail on theory of secondary service connection, there must be evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, the evidence shows that the Veteran has been diagnosed with ED. See March 2017 VA examination for central nervous system and neuromuscular diseases. The evidence also shows that the Veteran is currently service connected for CVA residuals, including right upper extremity weakness, organic mental syndrome and cognitive disorder, right lower extremity weakness, impairment of the hypoglossal cranial nerve, and history of aphasia. See January 2021 Rating decision. The question remaining for the Board is whether the evidence supports a medical link between the Veteran’s ED and his service-connected CVA residuals. The Veteran was afforded several VA examinations and opinions about his ED and CVA residuals. The March 2017 VA examiner opined that the Veteran’s ED is due to obesity. March 2017 VA examination for central nervous system and neuromuscular diseases. The examiner provided no rationale as to why ED is likely due to the Veteran’s obesity, but added that obesity is less likely than not due to his CVA residuals given that the examination shows only slight ongoing limitations from his CVA and calorie restriction would have compensated for his inactivity. Id. An October 2018 VA examiner also opined the Veteran’s ED as less likely than not due to his CVA residuals. See October 2018 VA examination for male reproductive system conditions. The VA examiner opined that there are several risk factors for ED, including diabetes and obesity, but that these conditions were diagnosed years before his ED. Id. However, in February 2019, the same VA examiner opined that the Veteran’s ED is not due to a central nervous system disease, but is neuropathic ED. February 2019 VA examination for central nervous system and neuromuscular disease. The examiner clarified that neuropathic ED is more likely secondary to the Veteran’s diabetes mellitus as this is a common complication to diabetes. August 2019 VA examination medical opinion. In November 2019, another VA examiner opined that the Veteran’s ED existed prior to service and was not aggravated beyond its natural progression by his CVA residuals as ED was not diagnosed until 15 years after his CVA. November 2019 VA examination medical opinion. In November 2020, the Veteran was afforded another VA examination for his CVA residuals and this examiner opined that the Veteran’s ED is a residual of his CVA. November 2020 VA examination for central nervous system and neuromuscular diseases. The examiner did not provide rationale for his opinion. Id. In January 2021, another VA examiner was asked to clarify whether there is a medical link between the Veteran’s ED and CVA residuals. January 2021 VA examination medical opinion. The January 2021 VA examiner opined that there are a number of causes for ED and she could not say whether it was caused by his diabetes or his CVA without resorting to speculation. Id. Each VA examiner is a medical professional qualified to evaluate the cause of the Veteran’s ED, who had the opportunity to review the evidence. However, the VA examiner who provided the October 2018, February 2019, and August 2019 opinions gave internally inconsistent opinions, indicating at first that ED is not likely due to diabetes because it was diagnosed years before his ED diagnosis, then later opining that it is due to diabetes. See October 2018 VA examination for male reproductive system conditions; February 2019 VA examination for central nervous system and neuromuscular disease; August 2019 VA examination medical opinion . The November 2019 VA examiner’s opinion appears to be based on an incorrect factual premise that the Veteran’s ED preexisted service and then only opined on whether ED was aggravated by the Veteran’s CVA residuals. November 2019 VA examination medical opinion. The Board finds that the October 2018, February 2019, August 2019, and November 2019 VA examiners’ opinions are not probative for these reasons. The remaining probative evidence of record is at least in relative equipoise as to whether the Veteran’s ED is due to his CVA residuals. As noted above, neither than March 2017 VA examiner nor the November 2021 VA examiner provided rationale as to how the Veteran’s current ED is proximately due to or the result of his obesity or his CVA residuals. See March 2017 VA examination for central nervous system and neuromuscular diseases; November 2020 VA examination for central nervous system and neuromuscular diseases. The Board finds that the opinions are both from medical professionals who had the opportunity to examine the Veteran and are equally probative as to the cause of the Veteran’s ED. In addition, the January 2021 VA examiner suggests that it is at least possible the Veteran’s CVA residuals caused his ED. See January 2021 VA examination medical opinion. The Board, thus, finds that the evidence is in at least relative equipoise as to whether the Veteran’s ED is proximately due to or the result of his CVA residuals. Accordingly, entitlement to service connection for ED is warranted. REASONS FOR REMAND Issue of entitlement to a rating higher than 10 percent for chondromalacia of the right knee with history of arthritis and residuals of a right knee injury is remanded. Unfortunately, the Board finds that another remand is required for the Veteran’s claim of entitlement to a rating higher than 10 percent for chondromalacia of the right knee with history of arthritis and residuals of a right knee injury for another opportunity for a VA examination. The February 2019 Board decision remanded the claim to afford the Veteran another opportunity for a VA examination. The evidence shows that the Veteran was provided two VA examinations for his right knee disability on remand. The August 2019 did not provide an estimate for the Veteran’s right knee limitations after repetitive use over time or during a flare-up because the Veteran indicated he normally does not use his knee due to the pain. See August 2019 VA examination for knee and lower leg conditions. The Veteran was then seen by a different VA examiner in November 2019, in which the examiner found a normal range of motion in his right knee, no evidence of pain, and that the Veteran denied having flare-ups. November 2019 VA examination for knee and lower leg conditions. The Veteran’s representative contends that the Veteran did report pain during range of motion testing with the November 2019 VA examiner, but that the VA examiner indicated “she thought he was faking it.” January 2020 Third party correspondence. The Board finds that it is unclear from the August 2019 VA examination if the Veteran’s reported pain and avoidance using his right knee after repetitive use over time or during a flare-up prevented any reliable estimate of his range of motion, including based on the Veteran’s reported restrictions. As for the November 2019 VA examination, while there is no indication in the November 2019 VA examination report suggesting the examination was improper, the Board finds the Veteran should be provided another VA examination to ensure he has the fullest opportunity to present his claim. The Board, thus, finds that the Veteran should be afforded another opportunity for a VA examination for his right knee. The matters are REMANDED for the following action: Schedule the Veteran for a new examination by a different medical professional than those who performed the March 2017 or November 2019 VA examinations, if possible. The examiner should determine the current severity of the Veteran’s service-connected right knee disability. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.