Citation Nr: A25035104 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240906-471980 DATE: April 16, 2025 REMANDED Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected post-traumatic stress disorder (PTSD) and depressive disorder, not otherwise specified, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to December 2007, January 2008 to October 2008, and January 2009 to January 2010. This matter comes before the Board of Veterans' Appeals (Board) from an August 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2024 rating decision. In August 2024, the RO issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2024 decision. In the September 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 RO decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the RO issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for ED, any evidence the Board could not consider will be considered by the RO in the adjudication of those claims. 38 C.F.R. § 3.103 (c)(2)(ii). As a final preliminary matter, the Board acknowledges the recent precedential decision Williams v. McDonough regarding 38 C.F.R. § 20.202 (c)(2) and the limitation on deciding Appeals Modernization Act (AMA) appeals before the time to change dockets has elapsed. 38 Vet. App. 305 (2024). In this case, less than one year has passed since the date of the RO's notice of the decision on appeal. However, rather than delay adjudication of the case, and because the Board is remanding the issue for additional development, there is no prejudice to the Veteran in proceeding. Entitlement to service connection for ED The Veteran asserts that his ED condition is related to his service-connected PTSD and depressive disorder, not otherwise specified. On his January 2024 claim form, he attributed his ED and lack of sex drive to his PTSD, lack of sleep, depression, anxiety, and medication side effects. In the August 2024 rating decision on appeal, the RO favorably found that the Veteran's primary disability is service connected and that he has been diagnosed with ED according to a January 2024 VA examination. Under the AMA, the Board is bound by favorable findings made by the RO. 38 C.F.R. § 3.104 (c). Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the RO decision on appeal (i.e., pre-decisional duty to assist errors) and (2) RO errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. See 38 C.F.R. § 20.802 (a). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A veteran may establish entitlement to secondary service connection if the current disability was (1) caused by a service-connected disability; or (2) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Secondary service connection can be warranted for the natural progression of a condition not caused by a service-connected disability but that nonetheless would have been less severe were it not for the service-connected disability. Spicer v. McDonough, 64 F. 4th 1360 (Fed. Cir. 2023). In May 2024, a VA medical examiner opined that the Veteran's ED was less likely than not proximately due to or the result of PTSD and depressive disorder, not otherwise specified. The examiner recited the Veteran's January 2024 report of medical history in the male reproductive organs conditions VA examination and explained that there is no pathological or etiological correlation or evidence in the medical records provided establishing a nexus between the Veteran's ED and PTSD. The Board finds the May 2024 VA medical opinion to be inadequate for two reasons. First, the examiner failed to specifically consider the Veteran's statement on the January 2024 claim form that his ED is related to his PTSD, lack of sleep, depression, anxiety, and medication side effects. As noted, where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, supra. An examiner must consider the veteran's lay assertions when rendering an opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Second, the May 2024 VA medical opinion is inadequate because the examiner failed to address whether the Veteran's ED was at least as likely as not aggravated beyond its natural progression by his service-connected psychiatric condition and medication side effects. Both causation and aggravation must be addressed when conducting a secondary service connection analysis in any claim for benefits, and both must be addressed in any VA medical opinion concerning secondary service connection. Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). See also Garner v. Tran, 33 Vet. App. 241, 251 (2021). As the VA examiner failed to address the Veteran's assertions and the aggravation prong of secondary service connection, a remand is necessary to correct a pre-decisional duty to assist error in not obtaining an adequate medical opinion before the rating decision on appeal. The Board cannot make a fully informed decision on the issue of entitlement to service connection for ED because there is no adequate medical opinion in the record, and the remaining evidence is insufficient to find a nexus between the Veteran's service-connected psychiatric condition and his non-service-connected ED condition. While the Board regrets the additional delay, a remand is necessary. The Veteran is encouraged to submit medical evidence linking his claimed ED condition to his service-connected conditions, if possible. The matter is REMANDED for the following action: Forward the claims file to an appropriate clinician to obtain an addendum VA opinion regarding the etiology of the contended ED condition. Upon review of the file and an examination of the Veteran, if deemed needed, the examiner must answer the following questions: 1. Is it at least as likely as not (likelihood is at least in approximate balance or nearly equal, if not higher) that the Veteran's ED condition is due to or the result of his service-connected PTSD and depressive disorder, not otherwise specified? The examiner must specifically address the Veteran's contention that his ED is related to his symptoms of lack of sleep, depression, anxiety, and medication side effects. 2. Is it at least as likely as not (likelihood is at least in approximate balance or nearly equal, if not higher) that the Veteran's ED condition was aggravated by his service-connected PTSD and depressive disorder, not otherwise specified? Specifically, did his service-connected PTSD and depressive disorder, not otherwise specified cause any incremental increase, regardless of its permanence, of his ED condition? Again, the examiner must specifically address the Veteran's contention that his ED is related to his symptoms of lack of sleep, depression, anxiety, and medication side effects. The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310 (b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. at 239 (2019). If the examiner determines that the Veteran's ED condition was aggravated by his service-connected PTSD and depressive disorder, not otherwise specified, the examiner must provide the baseline level of severity of the ED condition established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the ED condition. See 38 C.F.R. § 3.310 (b). If medical literature is relied upon, the examiner should identify and specifically cite each reference material used and discuss how it relates to the Veteran's particular medical history. The examiner should specifically discuss any contradictory evidence in the claims file and reconcile that evidence with their findings. All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Wolfe, 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.