Citation Nr: 21039794 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-35 039 DATE: July 1, 2021 ORDER Entitlement to service connection for erectile dysfunction is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's GERD is remanded. FINDING OF FACT The Veteran's erectile dysfunction disability is not secondary to any of his service connected disabilities or the medication he takes for those disabilities, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction have not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from October 1974 to December 1981. In September 2018, the Board denied the Veteran's GERD increased rating claim and remanded his erectile dysfunction claim. His increased rating claim was denied because his recent VA examinations showed no evidence that his disability met the criteria for a higher rating. His erectile dysfunction claim was remanded for a VA examination that considered secondary service connection. The Veteran received a VA examination for his erectile dysfunction in February 2019. The examiner noted that his erectile dysfunction may be caused by his medication for hypertension; he had a service connection claim for hypertension that was before the Board. Accordingly, as the 2 claims were inextricably intertwined, the Board remanded his erectile dysfunction claim again in June 2019. He appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2020 memorandum decision, the Court vacated the Board's September 2018 decision and remanded the matter to the Board for further development and readjudication. The Court determined that when evaluating the Veteran's GERD disability, the Board should not have considered the ameliorative effects of his medication because the diagnostic code under which his disability is rated does not consider his medication. See Jones v. Shinseki, 26 Vet. App. 26 (2012). In December 2020, the Board remanded the case for the Veteran to receive new VA examinations for both disabilities. The GERD VA opinion needed to consider the severity of the Veteran's symptoms in the absence of the ameliorative effects of medication. The erectile dysfunction claim was remanded to ensure the VA opinion addressed the aggravation prong of a secondary service connection claim. The Veteran received new VA examinations in January 2021. The Board finds that the erectile dysfunction VA examiner considered the Veteran's current medication and his service connected disabilities when providing an opinion on possible aggravation. Accordingly, this examination and opinion were adequate and substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds, however, that the VA examination for his GERD disability was inadequate, and it is further addressed in the remand portion below. The Board acknowledges that the Veteran's attorney argued that the VA examinations for the Veteran's GERD disability were inadequate because they failed to consider the symptoms not controlled by medication. As noted above, the Board finds that the most recent VA examination also failed to address this issue. Neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran received a VA examination in February 2019 for his erectile dysfunction disability. The examiner noted that the onset of his erectile dysfunction was around 10 years ago. He opined that his was more likely than not that his disability was due to the medication the Veteran takes for his hypertension. Medication for heart and blood pressure can impact the ability to achieve and maintain an erection. The Veteran's hypertension is not service-connected. In January 2021, the Veteran received another VA examination. The examiner noted that different things can have an impact on erectile function including diabetes, hypertension, obesity, dyslipidemia, cardiovascular issues, smoking, age, and medication. However, when considering the medication the Veteran was on for his service connected disabilities, the medical literature did not support a causal relationship between the medication and the development of erectile dysfunction. Similarly, there was no evidence of a causal relationship between his service connected disabilities and his erectile dysfunction. The examiner also noted that while a baseline of severity for his erectile dysfunction could not be established there was no evidence that his erectile dysfunction disability was aggravated by his service-connected disabilities or the medication he takes for those disabilities. The examiner specifically noted the medication he takes for his reflux issues, omeprazole and Pepcid, and discussed that these medications do not aggravate the physiological mechanisms of erectile dysfunction. The examiner stated that medications that do have a relationship with erectile dysfunction are antihypertensives, antidepressants, antipsychotics, antiandrogens, and recreational drugs. The Veteran does not take any of these for a service-connected disability. In considering the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim. The VA examinations of record provided competent, credible evidence that the Veteran's erectile dysfunction was not caused or aggravated by his service-connected disabilities or the medication he takes for such disabilities. The Board acknowledges the Veteran's lay statements that his erectile dysfunction is due to the medication he takes. However, as noted by the February 2019 VA examiner, the evidence of record shows that his disability is connected to the medication he takes for his non-service-connected hypertension. Likewise, the January 2021 VA examiner noted hypertension as a factor relating to erectile dysfunction. The Board cannot consider the impact of medication for his non-service-connected disabilities when determining whether secondary service connection is warranted. Although the Veteran is competent to state that he has erectile dysfunction, he does not have the experience, skills, or medical training to provide a competent opinion regarding its etiology. Determining whether medications cause or aggravate erectile dysfunction requires knowledge of the impact of medications on the human body and other internal physical processes. His opinion is not competent evidence. Therefore, the Board finds that secondary service connection for erectile dysfunction is not warranted. The Board also notes that direct service connection is not warranted because there is no evidence of in-service onset. Additionally, the Veteran has not asserted that hi erectile dysfunction is directly related to service. REASONS FOR REMAND The Veteran's GERD increased rating claim was remanded by the Court in March 2020 and then remanded by the Board in December 2020. The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). If the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Because there has not been substantial compliance with the December 2020 remand directives, another remand is necessary. The Board stresses the importance of carefully following the directives of this remand in order to allow for a final resolution of the Veteran's increased rating claim. The Court's Memorandum Decision and the Board remand noted that the VA examiner should specifically evaluate the severity of the Veteran's symptoms without the ameliorative effects of medication. This analysis was not done by the VA examiner. Accordingly, the Board finds that another remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his GERD. The examiner should identify all symptoms attributable to his GERD and the examination should be conducted in accordance with the current disability benefits questionnaire. The examiner should provide a full description of the Veteran's associated functional impairments as they related to the relevant rating criteria. The examiner should specifically comment on the severity of his GERD symptoms in the absence of the ameliorative effects provided by the medication used to treat his GERD. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.