Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability, is remanded.
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Citation Nr: 22031814 Decision Date: 05/31/22 Archive Date: 05/31/22 DOCKET NO. 17-67 188 DATE: May 31, 2022 ORDER As new and material evidence has been received, the petition to reopen a claim of entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability, is remanded. Entitlement to a compensable initial rating for traumatic brain injury (TBI) is remanded. Entitlement to a rating in excess of 10 percent for metatarsalgia of the left foot is remanded. REFERRED The issue of entitlement to an increased rating for left ankle disability was raised in a 2015 VA Form 9, and a December 2017 VA Form 9, and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. In October 2011, the Regional Office (RO) initially considered and denied the Veteran's claim for service connection for erectile dysfunction; he did not appeal that decision. 2. Additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of that last final and binding denial of this claim for service connection for erectile dysfunction, and raises a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW There is new and material evidence since the October 2011 rating decision denying the claim of entitlement to service connection for erectile dysfunction; therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156, 3.160(d), 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1975 to February 1982, from February 1983 to December 1984, and from November 2001 to February 2002. In a January 2020 written statement, the Veteran withdrew his prior request for a Board hearing (see VA Form 21-4138). As such, the Board finds that his request for a hearing has been withdrawn. 38 C.F.R. § 20.704. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for erectile dysfunction A decision by the local Regional Office (RO) on a claim is final and binding unless appealed or some other exception to finality applies. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A previously denied, unappealed claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence relating to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final and binding denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating the claim is "low". See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). For purposes of determining whether there is new and material evidence, the credibility of the evidence is presumed unless inherently incredible (patently false or untrue) or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran's claim for service connection for erectile dysfunction was denied in an unappealed and final October 2011 RO rating decision. At the time of the decision, the evidence included a February 2011 report by Dr. C. Bash, in which he stated that the Veteran has been having persistent problems with erections since his traumatic brain injury (TBI) in 1977, that the Veteran's "records do not contain another more likely cause for his ED [erectile dysfunction]", and that he "should therefore be assigned a service connected MDC for these problems because TBI is known to cause ED problems." However, later in the same report, Dr. Bash contradicted himself and stated that the Veteran has "likely developed erectile dysfunction due to his cardiac medications" and he has "secondary complications of his anti-HTN medications in the form of erectile dysfunction". When the Veteran had initially filed his claim for service connection, he contended that his erectile dysfunction was secondary to his nonservice-connected diabetes. Also included in the evidence at the time of the last final denial was an August 2011 VA examination report that recounted that the Veteran's erectile dysfunction is secondary to his diabetes by way of aggravation, and that the erectile dysfunction may be multifactorial. In 2017, the Veteran filed a petition to reopen the prior denial. He asserted that he had erectile dysfunction as secondary to his service-connected posttraumatic stress disorder (PTSD). Added to the record since then is an April 2020 Disability Benefits Questionnaire (DBQ) in which the examiner opined that the Veteran's erectile dysfunction is secondary to his diabetes mellitus. The DBQ also includes the Veteran's statement that he could no longer get an erection in the late 1990s. The DBQ examiner found that the Veteran's erectile dysfunction is not aggravated by the Veteran's PTSD or TBI. Also, included is August 2020 correspondence from Physician Assistant L. Bucholz that it is her opinion that the Veteran's diabetes warrants service connection as it is due to obesity due to a service-connected disability. Essentially, she has made a lengthy chain of causation. The Board finds, given the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010) that new and material evidence has been received because another etiology opinion (with an opinion on aggravation), for the Veteran's erectile dysfunction has been provided. The claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for erectile dysfunction As noted above, there is conflicting clinical evidence as to whether the Veteran's erectile dysfunction is due to his TBI, his hypertension, or his diabetes, and he contends it is related to his PTSD. The February 2011 report by Dr. C. Bash lacks probative value because it was internally contradictory (i.e., that there is no likely cause for his erectile dysfunction other than TBI, and that the likely cause is HTN medication). The VA/DBQ examination reports are against a relationship between the Veteran's erectile dysfunction and a service-connected disability, but find it likely aggravated by uncontrolled diabetes. The Veteran's claim for service connection for diabetes is currently on appeal under Docket No. 200310-69811. As the two claims are inextricably intertwined, the Board will defer adjudication of the Veteran's claim for service connection for erectile dysfunction until resolution of his claim for service connection for diabetes. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). 3. Entitlement to an increased rating for TBI The Veteran has alleged that his TBI causes memory loss, sleep issues, difficulty expressing himself, fatigue, blurred vision, balance issues, and headaches. The Veteran's TBI is rated as noncompensable (0 percent) under DC 8045. He is separately in receipt of service connection for PTSD, evaluated as 50 percent disabling, which contemplates symptoms of memory loss, impaired sleep, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that a supplemental opinion on the issue of headaches, and whether they are a result of his TBI, is warranted. A March 2019 DBQ notes a reported onset date of migraines in 1977 which have worsened to "mild headache". However, the examiner provided no adequate rationale if the current headache condition was due to the 1977 TBI, and appears to have merely recited the Veteran's contention. A February 2011 report by private examiner, Dr. Bash, also is based on the Veteran's report of a headache in 1977 and continuing since then. However, the Board finds that an assertion of continuity of headaches since 1977 is not credible. The mere recitation of a Veteran's self-reported lay history does not constitute competent medical evidence of diagnosis or causality. See LeShore v. Brown, 8 Vet. App. 406 (1996). In addition, medical opinions premised upon an unsubstantiated account of a claimant are of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). In essence, the private opinions lack probative value because they apparently rely mostly, if not entirely, on a history recounted by the Veteran that has not been shown to be true. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). The service treatment records (STRs) reflect that the Veteran had a headache after an assault in October 1977. However, the STRs are unremarkable for frequent or chronic headaches, and in fact, weigh against such a finding. An August 1980 STR notes a complaint of tightness in the neck with a headache of one day in duration, and the next day an STR notes a headache, with vomiting, dizziness, stomach cramps; it is unremarkable for an indication that the headache and other symptoms may be related to the TBI four years earlier. More than three years later, a November 1983 STR notes a complaint of a headache after hitting the side of his head against a window two days earlier in a motor vehicle accident. The STRs are unremarkable for chronic headaches. Thus, only three headaches were noted over a seven-year period. Importantly, not only do the STRs not reflect frequent or severe headaches, but the Veteran's Reports of Medical History in November 1979, April 1983, August 1984, and October 1993 all reflect that the Veteran denied frequent or severe headaches. On his August 1984 Report of Medical History, the Veteran reported that he was in "excellent health". Post-service, a January 2003 VA clinical record notes that he complained of an increase in headaches; no etiology was reported. Subsequent records note that he denied headaches (see e.g., May 2005, March 2009, April 2009 VA clinical records) and when he reported headaches, he alleged various etiologies. An August 2011 VA clinical record reflects that the Veteran reported headaches due to Glipizide (a medication used to treat nonservice-connected diabetes/high blood sugars). Another August 2011 VA clinical record reflects that the Veteran reported headaches due to Viagra (used to treat nonservice-connected erectile dysfunction). The Veteran has also claimed that his headaches are due to his service-connected PTSD. An August 2011 VA examination report by Dr. E.B. (neurologist) reflects that the Veteran reported headaches occurring for "several years" although he could not recall when the headaches first began to occur. Dr. E.B. also noted that the Veteran "did report headaches following his initial injury in 1977, however, this is unlikely to be the current cause of his headaches. Most headaches which result from craniofacial trauma resolve within 3 to 5 years post injury unless there is another contributing etiology". An October 2013 DBQ with a November 2013 consult for TBI reflects the opinion of the examiner (A.H.) as follows: [The] Veteran's headaches are not likely attributable to [TBI] as onset was years after the reported incident with years of record without any noted complaints of headaches. A majority of individuals experience headaches, and there is insufficient evidence to support a contention that the Veterans headaches arise from a [TBI] decades ago. A February 2018 private evaluation report by Dr. J.A. (Manassas Neurology Associates, PLLC) reflects that the Veteran's "headaches are quite nonspecific and are difficult to distinguish from tension type headaches. He describes some of his headaches as migraines, but he has no family history of migraine whatsoever and this reduces the likelihood that his headaches are actually migraines." The most probative opinions are the 2011 and 2013 VA examiners. However, as VA subsequently obtained an examination in March 2019, it is obligated to ensure that the DBQ is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, a supplemental report is warranted. The examiner should opine whether it is as likely as not that the Veteran has a headache disability as a symptom of his TBI. Veterans are entitled to initial review by the AOJ of evidence added to the file by VA (such as the March 2019 DBQ), and waiver of such review may not be presumed. See 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1304. This is not a situation where the evidence in question was submitted directly to the Board and the type that the Board does not need a waiver concerning and resultantly may presume the Veteran wants the Board to consider in the first instance (this affirmative presumption concerns cases where the Substantive Appeal to the Board was received on or after February 20, 2013). Further, when evidence is received prior to the transfer of a case to the Board, an SSOC must be furnished to the Veteran and his or her representative as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to an issue on appeal. 38 C.F.R. § 19.37 (a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. In the present situation, the RO issued a Statement of the Case (SOC) in October 2017, and the February 2018 private report was received by VA prior to the December 2018 transfer of the claim to the Board. Additionally, the March 2019 DBQ was later added to the claims file. As this claim is being remanded for additional development, the RO will have the opportunity to consider the evidence received after the October 2017 SOC. 4. Entitlement to a rating in excess of 10 percent for metatarsalgia of the left foot In a June 2003 decision, the Board granted service connection for a "left foot disability" based on STRs showing a blister on his foot (March 1983), a sharp pain on the bottom of the foot and a plantar wart (August 1984), and post service records noting a plantar wart on the lateral ball of the left foot and plantar fasciitis (see April 2003 VA examination report). In the same June 2003 decision, the Board also granted service connection for a left ankle disability based on STRs showing a sprain in October 1984, and an April 2003 VA examination report which reflected a chronic ankle sprain. In a June 2003 rating decision, the RO effectuated the Board's grant and assigned a 10 percent rating under DC 5299-5279, for the left foot, and a noncompensable rating under DC 5271 for the left ankle. Subsequently, the Veteran filed a claim for service connection for peripheral neuropathy, which the RO accepted as a claim for an increased rating for his foot disability. A March 2013 DBQ notes diagnoses of diabetic peripheral neuropathy and mallet toe left third toe. However, the examiner did not address all the Veteran's foot disabilities (e.g., plantar fasciitis and wart); thus, it was inadequate. When VA obtains an examination, it is obligated to ensure that the DBQ is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the examination is now nine years old. The "mere passage of time" does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). However, given the inadequacy of the last examination and the Veteran's contention that his symptoms have not been adequately addressed, a new examination is warranted. The Board acknowledges that the Veteran's left foot disability is rated under 38 C.F.R. § 4.71a, DC 5279, which provides a maximum 10 percent rating for unilateral or bilateral anterior metatarsalgia (Morton's disease). He has had the highest schedular rating under that diagnostic code; however, the Board finds that an additional examination may provide evidence as to whether or not an extra schedular rating is warranted, if his symptoms pyramid other symptoms, or if his symptoms would more accurately be compensated under a different diagnostic code. The matters are REMANDED for the following action: 1. Upon readjudication of the matter in Docket number 200310-69811 (entitlement to service connection for diabetes), readjudicate the matter of whether service connection is warranted for erectile dysfunction. 2. Obtain a supplemental clinical opinion to the March 2019 DBQ. The examiner should opine whether it is as likely as not (50 percent or greater probability) that the Veteran has a current headache disability which is a symptom of his 1977 TBI. The examiner should consider the pertinent evidence of record, to include: a. the October 1977, the August 1980 STR, and the November 1983 STR, which note headaches; b. the Veteran's Reports of Medical History in November 1979, April 1983, August 1984, and October 1993 which all reflect that the Veteran denied frequent or severe headaches; c. the January 2003 VA clinical record noting an increase in headaches, and the records noting he did not have headaches (see e.g., May 2005, March 2009, April 2009 VA clinical records); d. The August 2011 VA clinical records in which the Veteran reported that Glipizide and Viagra cause his headaches; e. The Veteran's contention that his PTSD causes headaches; f. An August 2011 VA examination report by Dr. E.B. (neurologist) which notes that most headaches which result from craniofacial trauma resolve within 3 to 5 years post injury unless there is another contributing etiology"; g. An October 2013 DBQ (clinician A.H.) report that it is less likely as not that the Veteran's headaches are due to his TBI several decades earlier; h. A February 2018 private evaluation report by Dr. J.A. (Manassas Neurology Associates, PLLC; and i. That the Board has found that the Veteran is not credible as to chronic headaches in service and continuing since a 1977 TBI. 3. Schedule the Veteran for an examination to determine the current severity of any left foot disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If reasonably possible, the examiner should differentiate the Veteran's symptoms from each left foot/ankle/nerve disability which he may have so that the RO may better delineate between nonservice-connected and service-connected disabilities. J.L. BURROUGHS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.