Citation Nr: 21032794 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 08-18 364 DATE: May 28, 2021 REMANDED Entitlement to a rating in excess of 40 percent for a low back disability, specifically in relation to secondary service connection for erectile dysfunction (ED), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1973 to July 1974. This matter comes before the Board on appeal from a July 2007 rating decision of an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2009, the Veteran testified before the undersigned. In October 2015, the Board denied a rating in excess of 20 percent for the low back disability and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran appealed the Board's decision regarding the low back disability to the United States Court of Appeals for Veterans Claims (CAVC) which, in an August 2016 Order, granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's October 2015 decision concerning an increased rating for the low back disability, and remanded the case for compliance with the terms of the JMPR. In November 2016, the Board remanded this case for further development consistent with the directions of the JMPR. In an April 2017 rating decision, the AOJ increased the rating for the Veteran's low back disability to 40 percent disabling effective February 3, 2017 and assigned separate disability ratings for associated radiculopathy of the Veteran's lower extremities. In August 2017, the Board granted an increased 40 percent rating for the low back disability from June 7, 2007 through February 3, 2017, and denied a rating greater than 40 percent throughout the appeal period; granted an increased rating for left lower extremity radiculopathy, 10 percent from June 7, 2007; and granted a 10 percent rating for right lower extremity radiculopathy from June 7, 2007 through December 20, 2011, and a 20 percent rating thereafter. The Veteran appealed the Board's decision regarding the low back disability to the CAVC which, in a May 2018 Order, granted the parties' JMPR, vacated and remanded the Board's August 2017 decision concerning an increased rating for the low back disability greater than 40 percent. In October 2018 and January 2021, the Board remanded this matter for additional development and to comply with the terms of the May 2018 JMPR. Regrettably, additional development is necessary, as there has not been substantial compliance with the terms of the JMPR and January 2021 Board Remand. In this regard, the Board remanded this matter in January 2021 because the examiner did not discuss the ED that the Veteran reported at the August 2009 Board hearing. However, the February 2021 examiner also failed to discuss the ED that the Veteran reported at the August 2009 Board hearing, as the examiner's opinion notes that an October 2019 Compensation & Pension examination was negative for a diagnosis of ED but does not discuss the relevance of his hearing testimony. Moreover, the examiner provided an opinion addressing direct service connection, instead of the requested opinion addressing secondary service connection. On remand, an addendum opinion should be obtained addressing the nature and etiology of the ED that the Veteran reported at the August 2009 Board hearing. Updated VA treatment records should also be secured. The matters are REMANDED for the following action: 1. Secure updated VA treatment records. 2. Then refer the claim file to an examiner for preparation of an addendum opinion as to the nature and etiology of the Veteran's now resolved ED. No further examination of the Veteran is necessary unless deemed otherwise by the examiner. After reviewing the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's ED reported at the August 2009 Board Hearing: (a) was proximately due to his service connected back disability, to include as a result of medication to treat the same; or (b) was aggravated (worsened beyond natural progression) by his service-connected back disability, to include as a result of medication used to treat the same. Please address each question separately. In addressing these questions, the examiner is advised that while the Veteran has stated that his ED reported in August 2009 has since resolved, the key question for the examiner is the etiology of the ED that the Veteran competently and credibly reported at the August 2009 Board hearing. See August 2009 Hearing Testimony at 13. Thus, the examiner should not rely solely on recent examination reports showing no diagnosis of ED, as service connection is not precluded for a disability that was present during in August 2009 but subsequently resolved. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. If the examiner is unable to provide a requested opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on a lack of knowledge of the medical community at large. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.