Citation Nr: A25035281 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240311-423787 DATE: April 16, 2025 REMANDED Entitlement to service connection for a right hip disorder, to include as secondary to his low back strain, is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to obstructive sleep apnea (OSA), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1989 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office, hereinafter the Agency of Original Jurisdiction (AOJ). In a March 2024 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the notification of the AOJ decision (October 5, 2023) on appeal. 38 C.F.R. § 20.301. If evidence was added to the claims file during a period of time when new evidence was not allowed, when the Board is deciding the service connection claim listed above, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the Veteran's claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). In the February 2024 rating decision, the AOJ found, in part, that new and relevant evidence had been received to warrant readjudication of the claim. These favorable findings are binding on the Board. See 38 C.F.R. § 3.104(c). REASONS FOR REMAND 1. Service connection for right hip strain The Veteran seeks service connection for a right hip strain that he contends he injured while on active duty service. See May 2023 VA Form 21-4138 Statement in Support of Claim. As to the first element of service connection, the AOJ made the favorable finding in its February 2024 rating decision that the Veteran has a current disability: the November 2023 VA examination shows a diagnosis of right hip strain. Turning to service treatment records, the Veteran's military records are devoid of complaints or treatment for symptoms of a hip condition. The Veteran's separation exam in March 1992 is devoid of any notation regarding the Veteran's right hip. The Veteran was afforded a VA examination in November 2023. See Hip and Thighs Disability Benefits Questionnaire (DBQ). During the examination, the Veteran reported that his hip pain began in 2019 and has worsened as a result of his back injury. As a result of the examination, the examiner determined that the "claimed condition of hip pain is secondary to his service-connected back condition, and that it was less likely than not caused by ruck marches. Instead, the "Veteran was an aviator and did not participate in ruck marches; he damaged his back and hip loading equipment into his aircraft." The Veteran was afforded a VA opinion in regard to secondary service connection in December 2023. The examiner determined that the Veteran's hip condition is less likely than not due to the result of the Veteran's back pain. In rationale, the examiner determined that "though the Veteran clearly has hip and back pain supported by STR and VA, the medical literature does not support a connection between the two conditions." The Board finds the opinions of the November and December 2023 examiners inadequate because both opinions rely on inaccurate facts. Service treatment records show that the Veteran worked as a cryptological technician and electronic intelligence operator while in the Navy, not as an aviator. (See Veteran's Certificate of Release or Discharge from Active Duty, DD 214) Further, the Veteran injured his back while moving furniture in service in November 1992, not while loading equipment into an aircraft. (See November 1992 Service Treatment Record and December 1995 Rating Decision). Finally, both opinions do not acknowledge the Veteran's lay statement during the November 2023 examination that the worsening of his back condition caused his hip injury in 2019, post service. The Veteran's STRs are devoid of any notation regarding the Veteran's right hip strain. Finally, causation and aggravation were not separately discussed for any secondary service connection theory. Thus, remand is required to obtain a new opinion based on accurate information. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value.") As such, there is a pre-decisional duty to assist error, and remand is necessary in order to obtain adequate medical opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). 2. Service connection for erectile dysfunction The Veteran seeks service connection for erectile dysfunction that he contends is secondary to his service-connected OSA. See October 2021 VA Form 21-4138 Statement in Support of Claim. As an initial matter, the AOJ made a favorable finding in its February 2024 rating decision. As to the first element of service connection, the AOJ made the favorable finding that the Veteran has a current disability: the November 2021 VA examination shows a diagnosis of ED. Turning to the in-service element, the AOJ made favorable findings that the Veteran participated in toxic risk exposure activity (TERA). In June 2023, the VA examiner gave a negative nexus opinion in regard to the Veteran's TERA and his ED. The Veteran was afforded a VA examination in November 2021. See Male Reproductive Organ Conditions Disability Benefits Questionnaire (DBQ). As a result of the examination, the examiner determined that the claimed condition of ED is less likely than not the result of the Veteran's service-connected OSA. In rationale, the examiner noted sleep apnea does not cause ED. He further noted that while obesity with hyperlipidemia can cause ED, and obesity can cause OSA, this does not mean that OSA causes ED. In March 2023, the VA obtained an addendum opinion in regard to the Veteran's ED. The examiner determined that the Veteran's ED is not secondary to the Veteran's OSA or obesity because there are multiple known causes of ED, that there is no way to determine the cause of the Veteran's ED without speculation. The Board finds the November 2021 and March 2023 opinions inadequate. Remand is required for an adequate VA opinion. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Causation and aggravation were not separately discussed for any secondary service connection theory. Similarly, the Veteran's lay statements were not adequately considered in the opinions. Finally, an examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. While the examiner noted the Veteran's obesity, the examiner did not provide an opinion on whether the Veteran's obesity was a result of the Veteran's service-connected disability, nor discuss the impact of any medications that the Veteran uses on the Veteran's weight gain, which could cause or aggravate the Veteran's OSA. Obesity is not recognized by VA as a disease or disability for compensation purposes; however, obesity may serve as an intermediate step when considering secondary service connection under 38 C.F.R. § 3.310. See VAOPGCPREC 1-2017. In Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020), the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Of this note, the November 2021 examiner appears to suggest that the Veteran's obesity aggravates the Veteran's ED. The failure of the AOJ to ensure adequate opinions constitute pre-decisional duty to assist errors which must be corrected upon remand. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the etiology of the Veteran's right hip strain. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, one must be provided. An explanation for all opinions expressed must be provided. a) The examiner must provide an opinion regarding whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the right hip strain had its onset in, or is otherwise related to, active military service. b) The examiner must also provide an opinion whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the right hip strain is caused or aggravated by his service-connected low back strain. 2. Obtain an addendum opinion to determine the etiology of the Veteran's ED. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, one must be provided. An explanation for all opinions expressed must be provided. a) The examiner must provide an opinion regarding whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the ED had its onset in, or is otherwise related to, active military service. b) The examiner must also provide an opinion whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the ED is caused or aggravated by his service-connected OSA; c) whether the Veteran's OSA caused the Veteran to become obese or aggravated the Veteran's obesity; d) and if so, whether the obesity or aggravation of obesity as a result of OSA was a substantial factor in causing ED; e) whether ED would not have occurred but for obesity caused or obesity aggravated by OSA. If the examiner finds that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). A full explanation must be provided. Martina Mills Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. D. Brown 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.