Citation Nr: 21042677
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 16-38 622
DATE: July 13, 2021

REMANDED

Entitlement to a compensable rating for erectile dysfunction (ED) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from August 1969 to April 1971. 

The issue on appeal was denied by the Board in an April 2020 Board decision.  The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to a February 2021 Joint Motion for Remand (JMR).  The Court remanded the matter for further proceedings and readjudication in accordance with the JMR.  It is now before the undersigned.

1. Entitlement to a compensable rating for erectile dysfunction (ED) is remanded.

As noted above, in February 2021, the Court granted the JMR as to the Board's April 2020 decision denying the Veteran's claim for an  increased rating for ED and remanded the claim for actions consistent with the JMR.  As the basis for the JMR, the parties agreed that VA failed to acquire relevant private medical treatment records, and the Board failed to consider the full extent of the criteria for a higher rating for the Veteran's ED.  Significantly, while the Board found that the preponderance of evidence was against the finding of any penial deformity, the Court points out that the Board failed to speak to any "internal deformity," which may also fulfill the criteria for a higher rating.  The Board notes that a remand by the Court confers on the Veteran the right to compliance with the terms of that remand.  Stegall v. West, 11 Vet. App. 268 (1998). 

A close review of the Board's previous denial reveals that the Board's decision was ostensibly based on a 2013 VA prostate examination, which was silent on penial deformities.  The Board finds that such examination is both temporally remote, but may no longer represent the current nature and severity of the Veteran's ED.  A close review of the more contemporaneous VA prostate examination in July 2020 is also unclear whether any internal, or what the Court noted as potential nerve damage, were considered by the examiner on examination of the prostate.  As such, the Board finds that remand is required to obtain a VA examination regarding the Veteran's ED, and any private treatment records still outstanding. 

The matters are REMANDED for the following action:

1.  Obtain updated VA and private treatment records. 

2.  Schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of the Veteran's erectile dysfunction.  The claims file should be made available to the examiner for review in connection with the examination.  Taking into account the medical and lay evidence in the claims file, the examiner must determine the current severity of the Veteran's ED and specify whether the Veteran has internal or external deformity of the penis.  In addressing this question, the examiner should specifically discuss any potential nerve damage due to the Veteran's prostatectomy, as noted in the April 2013 VA examination; and whether this is reflective of internal penile deformity.  In so addressing, the examiner should be informed that the law defines the term "deformity" as applied to erectile dysfunction as a "penis, deformity, with loss of erectile power," and "a distortion of the penis, either internal or external."  The examination should include a complete rationale for all opinions expressed.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.

 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Ziheng Zhu, 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.