Citation Nr: 1754176
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 11-25 257 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUE

Entitlement to an initial compensable evaluation for erectile dysfunction.

REPRESENTATION

Veteran represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Jack S. Komperda, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1968 to April 1970.

This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In December 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record.

The claim was last before the Board in November 2015 and was remanded for further evidentiary development. For the reasons discussed below, another remand is required before the Board can adjudicate the claim. See Stegall v. West, 11 Vet. App. 268 (1998).

The Board notes that in August 2016, the Veteran perfected an appeal on the issues of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. In his VA Form 9, the Veteran requested a Board hearing on these issues. The Veteran also perfected an appeal in May 2017 on the issue of entitlement to service connection for deep vein thrombosis of the left lower extremity. In his VA Form 9, the Veteran also requested a Board hearing on this separate issue. As the Veteran’s respective hearing requests are still pending, the Board will not address these issues at this time.

The issues of entitlement to increased disability ratings for service-connected posttraumatic stress disorder (PTSD) and arthritis of the bilateral shoulders have also been raised by the record in an August 2017 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b).

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

REMAND

In November 2015, the Board remanded the claim to afford the Veteran a new VA examination to address the nature and current level of severity of the Veteran’s erectile dysfunction. The examiner was asked to specifically address in the examination report the Veteran’s lay statements describing testicular pain and explain whether this pain was a symptom of the Veteran’s erectile dysfunction. If it was not a symptom of erectile dysfunction, the examiner was asked to provide an explanation on the source of the condition manifested by this pain.

In February 2016, the Veteran was afforded a VA male reproductive system conditions examination in which he was noted to have developed erectile dysfunction following surgery to have his prostate removed to treat his prostate cancer. The Veteran complained of pain in his testicles, erectile dysfunction, urinary incontinence, and constipation. The VA examiner concluded that the Veteran’s testicular pain was not a result of the erectile dysfunction. However, the examiner provided no explanation for how she arrived at this conclusion. Rather, she stated that “[i]f more information is needed I would recommend an evaluation by a specialist to determine the cause of the testicular pain since our function in the C&P department is not to diagnose and treat conditions.”

As there has not been substantial compliance with the instructions in the November 2015 Board remand, the Veteran should be afforded another VA examination with an appropriate medical specialist to determine whether the testicular pain the Veteran experiences is related to his service-connected disability. See Stegall, supra.

Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the Veteran’s claims file copies of all outstanding VA treatment records. If no additional outstanding records are available, this fact should be noted in the Veteran’s claims file.

2. Then schedule the Veteran for a VA examination with an appropriate specialist to determine all manifestations and the current level of severity of the Veteran’s service-connected erectile dysfunction. The examiner is specifically asked to ascertain the nature and severity of any current disability manifested by the Veteran’s reports of testicular pain. The claims file and a copy of this Remand should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail, to include all relevant diagnoses of a disability manifested by testicular pain.

The VA examiner should specifically address in the examination report the Veteran’s lay statements describing testicular pain and explain whether this pain is a symptom of the Veteran’s erectile dysfunction. If so, the examiner is asked to provide all appropriate medical findings to document the nature and severity of the Veteran’s reports of testicular pain. If the Veteran’s testicular pain is not a symptom of the Veteran’s erectile dysfunction, the examiner is asked to provide an explanation on the source of the condition manifested by this pain.

The examiner is asked to provide a detailed rationale for all opinions provided. If the examiner is unable to reach an opinion without resort to speculation, he or she must explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion.

3. After conducting any other development deemed necessary, readjudicate the Veteran’s claims. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review.

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).

_________________________________________________
M. E. LARKIN
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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