Citation Nr: A25035647 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 241001-479540 DATE: April 17, 2025 ORDER Service connection for erectile dysfunction as secondary to a back disability, is granted. REMANDED The issue of entitlement to service connection for tinnitus is remanded. FINDING OF FACT Resolving doubt in favor of the Veteran, the Veteran's erectile dysfunction is caused by his service-connected back disability. CONCLUSION OF LAW The criteria for secondary service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1988 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which addressed service connection for erectile dysfunction and an October 2023 rating decision of the RO which addressed service connection for tinnitus. In the October 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 January 2024 and October 2023 RO decisions on appeal. 38 C.F.R. § 20.301. Any evidence related to the individual claims submitted after their respective RO decision on appeal, cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. With respect to the claim for service connection for erectile dysfunction, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, 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 claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. With respect to the claim for service connection for tinnitus, because the Board is remanding this claim, any evidence the Board could not consider will be considered by the RO in its forthcoming adjudication. 38 C.F.R. § 3.103(c)(2)(ii). In remanding this claim, the Board makes no credibility determination, expressed or implied, at this juncture. Service connection for erectile dysfunction, as secondary to a back disability, is granted. The Veteran is seeking service connection for erectile dysfunction (ED) that he contends is caused by, or the result of, his service-connected back disabilities. As an initial matter, the Veteran filed his claim for erectile dysfunction as secondary to his service-connected lumbosacral strain, on the basis that the chronic pain he experiences from this condition has caused his erectile dysfunction. See September 2023 VA Form 21-4138 Statement in Support of Claim. However, based on the medical evidence, the Board has recharacterized the issue more broadly as a claim for erectile dysfunction as secondary to a back disability, in an effort to acknowledge the full breadth of the Veteran's condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant files their claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled). As will be addressed below, the Veteran experiences symptoms beyond chronic pain due to his lumbosacral strain, and he is also service connected for left and right lower radiculopathy as secondary to his lumbosacral strain. Thus, the recharacterization of this issue as secondary to his back disabilities more generally, serves to incorporate all the Veteran's back related conditions. Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis, as the Veteran seeks to do here, requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when the non-service-connected disability was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability, although not caused by a service-connected disability, would be less severe were it not for a service-connected disability. Id. at 1364. When the evidence is in approximate balance in the veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In this case, the RO has issued several favorable findings which are binding on the Board absent clear and unmistakable error. First, that the Veteran has a current diagnosis of erectile dysfunction. See January 2024 Rating Decision. Second, that the Veteran's claimed primary disability of a lumbosacral strain is service connected. Id. Additionally, the Board would note that the Veteran is service connected for left and right lower extremity radiculopathy, secondary to his lumbosacral strain. See March 2023 Rating Decision. Applying these favorable findings, the Board must now consider whether the Veteran's ED is caused or aggravated by his service-connected back disabilities. Turning to the medical evidence, the Veteran has received three VA medical examinations addressing ED during the pendency of this claim. In his most recent examination, the examiner reconfirmed his diagnosis of ED and documented the Veteran's subjective complaints- that he believes his ED is related to his chronic and pervasive pain from his back disability. See October 2023 Male Reproductive Organ Conditions Disability Benefits Questionnaire (DBQ). Following the examination, the examiner opined that the Veteran's ED was "less likely than not...proximately due to or the result of the Veteran's service connected condition." See October 2023 VA Medical Opinion. As a rationale to support this conclusion, the examiner explained that per the Urology Foundation, erectile dysfunction can result from injury to the spinal cord which alters the nerve signals reaching the penis. Id. As the Veteran's lumbar strain was a muscular injury and did not involve the spinal cord, his ED was not associated with the lumbar strain. Id. However, to the extent that the examiner's rationale suggests the Veteran does not have spinal cord or nerve damage related to his lumbosacral strain, it is factually inaccurate. In a June 2023 VA medical examination, the Veteran was evaluated for his back conditions. The examiner reaffirmed his diagnosis of a lumbosacral strain as well as left and right lower extremity radiculopathy. See June 2023 VA Back (Thoracolumbar Spine) Conditions DBQ. The examiner documented the Veteran's symptoms, including pain as well as numbness and tingling in his mid to lower back that radiated to his legs and feet. Id. Notably, the examiner also documented symptoms of bilateral lower extremity radiculopathy that included mild intermittent pain, paresthesias and/or dysesthesias, and numbness involving the sciatic nerve. Id. The Board would note that the results of this examination are consistent with the findings of a previous VA back examination conducted in March 2023, as well as Peripheral Nerve Condition examinations conducted in August and March 2023, which also documented similar symptoms and abnormal findings for the Veteran's sciatic nerve. Given the findings in the Veteran's back and nerve examinations, the Board concludes that he does suffer from nerve damage related to his lumbosacral strain. Applying this conclusion to the October 2023 examiner's ED rationale, that injury to the spinal cord or nerve damage can result in ED, and resolving doubt in favor of the Veteran, the Board finds that the evidence is sufficient to conclude that the Veteran's ED has been caused by his back disability through multiple steps in a causal chain. See Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023). Thus, the causation element of secondary service connection is met. The Board acknowledges that the Veteran's representative has provided additional argument related to this claim that seeks a specific effective date, rating, and has raised the issue of SMC(k). See October 2024 Third Party Correspondence. However, as these are downstream issues following a service connection grant, the Board must allow the RO an opportunity to address them in the first instance. As the criteria necessary to grant service connection are met, service connection for erectile dysfunction, as secondary to the Veteran's service-connected back disability, is granted. REASONS FOR REMAND Service connection for tinnitus is remanded. The Veteran generally contends that his diagnosed tinnitus was caused by noise exposure that he experienced while in service. As a part of its development of this claim, the RO determined that the Veteran experienced a TERA event related to noise exposure in service. See September 19, 2023 TERA Memorandum (associated with claims file as "other"). As a result, a VA medical opinion to address TERA was ordered, and it was subsequently received in October 2023. The examiner was asked to provide a TERA medical opinion specifically based on the Veteran's military occupational specialty (MOS). See September 2023 Exam Request. The examiner reviewed the record and ultimately concluded that the Veteran's tinnitus was "less likely than not...caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic combined effect of all toxic exposure risk activities of the Veteran. See October 2023 VA Medical Opinion. However, after review, the Board finds that this opinion is inadequate and thus, the RO's reliance on this opinion represents a pre-decisional duty to assist error that must be corrected on remand by obtaining an addendum medical opinion. As a basis for their negative TERA finding, the examiner did not provide a rationale, but instead wrote, "TERA memorandum does not show exposure; therefore, no opinion is warranted." See October 2023 VA Medical Opinion. The Board finds this statement to be inadequate as a rationale. Where the VA requests a medical examination or opinion, that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To be adequate, an examination and opinion must consider all relevant evidence, must provide a rationale, and must not be conclusory. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can weigh, and a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision); see also, Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Here, the RO chose to order an opinion to address a TERA. Accordingly, the Veteran is entitled to an adequate opinion. While the Board does recognize that there are two TERA memoranda shown in September 2023 which render opposite conclusions as to whether the Veteran experienced a TERA in service, the request to the examiner indicated that he did experience a TERA and thus the examiner's rationale to the contrary is factually inaccurate. See Reonal, 5 Vet. App. at 460; see also, October 2023 Rating Decision. Moreover, the examiner's rationale is not one that the Board can follow and weigh. Thus, this opinion is inadequate, and the Veteran is entitled to a new opinion on remand. The Board acknowledges that the record includes a May 2023 private medical opinion which found that the Veteran's tinnitus was at least as likely as not due to and/or related to military acoustic trauma during active-duty military service. However, this opinion is conclusory and fails to address relevant evidence in the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted.") Specifically, the opinion does not address conflicting medical evidence within the claims file, nor does it address the Veteran's tinnitus onset or the post-service noise exposure he experienced related to his work in law enforcement/ security. As such, this opinion cannot be used as the basis to award service connection at this time and the matter must be remanded to correct the pre-decisional duty to assist error addressed above. The matter is REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion addressing the Veteran's toxic exposure risk activity (TERA) to determine the nature and etiology of the Veteran's tinnitus. If the reviewing health care provider finds that a physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. The examiner should indicate whether the Veteran's tinnitus had causal origins in service or is otherwise related to the Veteran's period of active service, to include his TERA. With respect to TERA, the examiner must consider the Veteran's total potential exposure through all applicable military deployments and the synergistic and combined effect of all toxic exposure risk activities. A clear rationale must be provided for the opinion. A discussion of the facts and medical evidence would be of considerable assistance to the Board. For purposes of this opinion, the examiner should accept that the Veteran has experienced a TERA based on his MOS/ noise exposure in service. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Todd; 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.