Citation Nr: 1736661	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  14-07 250	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for erectile dysfunction, to include as secondary to a service connected-disability or medications for a service-connected disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel


INTRODUCTION

The Veteran had active service in the Air Force from February 1970 to February 1974 and from November 1990 to April 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In September 2016, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court").  In April 2017, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR).

In a June 2016 rating decision, the RO denied service connection for hearing loss.  The Veteran responded in a timely April 2017 Notice of Disagreement (NOD) form regarding the denial of service connection, so within one year of notification of that decision, to initiate an appeal.  38 C.F.R. § 20.201 (2016).  The AOJ has not yet issued a statement of the case (SOC) on this issue.  Ordinarily the Veteran's claims should be remanded for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  However, in reviewing the Veterans Appeals Control and Locator System (VACOLS), it is clear the AOJ recognizes this issue is on appeal.  Furthermore, in an April 2017 letter, the RO advised the Veteran that his NOD had been received and that additional action was pending.  Thus, a remand of the Veteran's claims for increased ratings is not necessary at this time.

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.





REMAND

In the JMR, the parties agreed that VA referenced the incurrent standard in evaluating the May 2016 VA specialist's opinion.

The Veteran asserted that his erectile dysfunction was due to medications prescribed for his service-connected seizure disorder.

An October 2006 VA examiner noted that it could not be entirely discounted that the Veteran's lifelong problems with psychosis and seizure disorder were playing some minor role in his erectile dysfunction.

At the May 2015 hearing, the Veteran testified that his erectile dysfunction began after he started taking Zoloft in the 1990s. 

In May 2016, a VA examiner opined that the Veteran's erectile dysfunction was less likely than not permanently made worse by his service connected seizure disorder and/or medications for his seizure disorder.

The JMR explained that when seeking entitlement to service connection based  upon aggravation by a service-connected disability, section 3.310(b) only requires  "[a]ny increase in severity of a nonservice-connected disease or injury that is  proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease" for service connection, 38 C.F.R. § 3.310(b), and does not require that the non-service-connected disability be "permanently made worse," see id.  The Court in Allen v. Brown, 7  Vet. App. 439 (1995), explained that aggravation in the context of secondary service connection should be interpreted to mean "any increase in disability," which is distinguishable from the narrower form of "aggravation"  described in 38 U.S.C. § 1153.  7 Vet. App. at 445, 448-49.   Section 1153 pertains to compensation for any increase in disability resulting from the aggravation during service of an injury or disease that existed before service.  Id.  A determination as to whether a non-service-connected condition was "permanently made worse" is only  relevant to this distinguishable line of inquiry concerning the aggravation of "[a] preexisting injury or disease" that was present before service.  See 38 U.S.C. § 1153; Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed.  Cir. 2002).   

However, VA regulations also provide that VA will not concede that a nonservice-
connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is 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 nonservice-connected disease or injury.  38 C.F.R. § 3.310.

A new VA examination is required to determine if the Veteran's erectile dysfunction had had any increase in disability due to a service-connected disability or medications taken for a service-connected disability.

Accordingly, the case is REMANDED for the following action:

1. Obtain a medical opinion to address the following question.  If an opinion cannot be provided without a physical examination, it should be so noted.  The examiner should offer the following opinion:   

Is it at least as likely as not (50 percent or greater) that the Veteran's erectile dysfunction was either caused or aggravated (i.e. made worse by the service connected disability) by a service connected disability or from medications for a service connected disability?  Why or why not?

If aggravation is found, the examiner must identify the baseline level of severity of the nonservice-connected disease or injury 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 nonservice-connected disease or injury.  If this cannot be done, it should be explained why.
 
2.  Then readjudicate the appeal.  If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.  Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).
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