200401-75770

• Court: Board of Veterans' Appeals
• Decided: June 30, 2020
• Docket: 200401-75770
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 06/30/20 Archive Date: 06/30/20

DOCKET NO. 200401-75770 DATE: June 30, 2020

ORDER

Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure is remanded.

Entitlement to special monthly compensation based on loss of use of a creative organ is remanded.

REASONS FOR REMAND

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with Department of Veterans Affairs (VA) decision on their claim to seek review. This decision has been written consistent with the new AMA framework as the rating decision on the issue on appeal was issued after the implementation of the new law went into effect.

The Veteran served on active duty from September 1965 to August 1967.

This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2019 and March 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). See April 2020 Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran’s application for service connection for erectile dysfunction was received by VA in August 2019. VA received a timely AMA Notice of Disagreement in April 2020. As the Veteran choose the Direct Review Board Review Option on the Notice of Disagreement, the Board will consider only the evidence of record at the time of the March 2020 rating decision. See 38 C.F.R. § 20.202.

1. Entitlement to service connection for erectile dysfunction

The Veteran contends that his erectile dysfunction was a result of exposure to herbicide agents during his service in Vietnam.

The Veteran underwent a VA examination September 2019 for his erectile dysfunction. The examination did not include a nexus opinion concerning the theory of direct service connection. This is a pre-decisional duty to assist error requiring remand under AMA. As such, a remand is warranted to obtain an adequate VA opinion.

2. Entitlement to special monthly compensation based on loss of use of a creative organ

The Veteran contends that he should be entitled to SMC based on his erectile dysfunction.

The Board finds that the claim for SMC s inextricably intertwined with his claim for service connection for erectile dysfunction. As mentioned above, the Veteran’s claim for service connection for erectile dysfunction is pending. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Specifically, the correction of the pre-decisional duty to assist errors have bearing on whether SMC benefits are warranted. Thus, this issue is also remanded to allow for the completion of the outstanding development.

The matters are REMANDED for the following action:

1. Return the claims file to a qualified VA examiner to provide an addendum opinion that answers the following inquiry:

a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is casually or otherwise etiologically related to service, to include exposure to herbicides in Vietnam?

A complete rationale must be provided for any opinion expressed. A complete rationale must contain not only clear conclusions with supporting data.

M. Mills

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board R. Smith

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.