Veteranclaims’s Blog

January 30, 2023

Single Judge Application; tobacco use disability; VA compensation is generally precluded for a disability caused by a veteran’s use of tobacco in service, neither 38 U.S.C. § 1103 (“Special provisions relating to claims based upon effects of tobacco products”) nor its implementing regulations bar awarding service connection on a secondary basis—that is, where atobacco-related disability is caused or aggravated by a primary service-connected disability like major depressive disorder. As the veteran correctly notes, VA’s General Counsel Precedential Opinion 6-2003 (Oct. 28, 2003) permits such a claim under certain circumstances;

Filed under: Uncategorized — veteranclaims @ 7:46 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-1962
MARIO R. GALLEGOS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Army veteran Mario R. Gallegos appeals a Board decision that denied his
claim of service connection for erectile dysfunction (ED).* Mr. Gallegos argues that the Board
clearly erred by failing to discuss his expressly claimed theories of service connection, namely that
his ED is secondary to his mental condition or to any medications used to treat a service-connected
condition. The Board must address all issues that are explicitly raised by a claimant. Dallman v.
Wilkie, 33 Vet.App. 101, 109 (2020). Because the Board did not provide an adequate statement of
reasons or bases for not discussing his explicitly raised theories of service connection, the Court
remands.
Mr. Gallegos served in the Army from 1997 to 2002. He filed a claim for ED in 2015 in
which he listed three theories of service connection: (1) direct service connection, (2) service
connection as secondary to any mental condition, and (3) service connection as secondary to any
medications used to treat any service-connected condition. His claim was denied in 2015 because
the regional office (RO) found that the evidence did not show a current diagnosis of ED. In 2019,
the Board remanded his claim for ED as inextricably intertwined with another claim for

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-1962
MARIO R. GALLEGOS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Army veteran Mario R. Gallegos appeals a Board decision that denied his
claim of service connection for erectile dysfunction (ED).* Mr. Gallegos argues that the Board
clearly erred by failing to discuss his expressly claimed theories of service connection, namely that
his ED is secondary to his mental condition or to any medications used to treat a service-connected
condition. The Board must address all issues that are explicitly raised by a claimant. Dallman v.
Wilkie, 33 Vet.App. 101, 109 (2020). Because the Board did not provide an adequate statement of
reasons or bases for not discussing his explicitly raised theories of service connection, the Court
remands.
Mr. Gallegos served in the Army from 1997 to 2002. He filed a claim for ED in 2015 in
which he listed three theories of service connection: (1) direct service connection, (2) service
connection as secondary to any mental condition, and (3) service connection as secondary to any
medications used to treat any service-connected condition. His claim was denied in 2015 because
the regional office (RO) found that the evidence did not show a current diagnosis of ED. In 2019,
the Board remanded his claim for ED as inextricably intertwined with another claim for

The Board also denied entitlement to an initial rating in excess of 20% for lumbar spine degenerative disease
with facet arthropathy and bilateral lower extremity radiculopathy. Since Mr. Figueroa does not challenge those
matters on appeal, the Court dismisses them. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc).
2


intervertebral disc syndrome (IVDS) because “a remand for a new spine examination [would]
likely result in additional relevant evidence relating to [the ED claim].” R. at 699. Nowhere in the
decision did the Board acknowledge his original theories of secondary service connection.
A December 2019 examiner diagnosed Mr. Gallegos with ED and provided an opinion as
to whether his ED is at least as likely as not due to his IVDS. R. at 339. The examiner opined that
“there is no indication that [the veteran’s ED] is due to his low back condition that has not resulted
in loss of bowel/bladder control and the more likely cause would be his tobacco use disorder.” R.
at 340. After the medical examination, the RO granted service connection for major depressive
disorder.
In its November 2020 decision, the Board denied Mr. Gallegos’s claim for ED. Relying
solely on the December 2019 examination, it found that the evidence did not show his ED was
likely due to “a service-connected disability, including any medication or therapeutic treatment for
such disorders” and, instead, was more likely due to his tobacco use disorder. R. at 9. Mr. Gallegos
appealed.
As part of its duty to provide an adequate statement of reasons and bases, the Board must
address all issues that are explicitly raised by a claimant. Dallman, 33 Vet.App. at 109. “[A]nd the
Court has jurisdiction to review whether the Board erred in failing to consider such issues.” Id.
Beyond a conclusory finding, the Board did not provide any meaningful analysis of Mr.
Gallegos’s explicitly raised theories of secondary service connection. The Board noted at the outset
of its discussion that the veteran claimed service connection as secondary to either a mental
condition or any medication prescribed for a service-connected disability. It also acknowledged
that Mr. Gallegos had been recently service connected for major depressive disorder.
Problematically, however, the Board limited its discussion to the December 2019 VA exam, which
opined solely as to a nexus between the veteran’s ED and IVDS. It relied on this exam to find that
his ED was not due to any service-connected disability—including medication prescribed for such
disabilities—despite the exam providing no express support for this finding. Neither the examiner
nor the Board discussed whether Mr. Gallegos’ ED is due to his major depressive disorder or any
of the many medications he is currently prescribed. Discussing these theories could have prompted
the Board to seek a nexus examination, as it did with IVDS. See, e.g., Green v. McDonough, No.
20-2775, 2021 U.S. App. Vet. Claims LEXIS 2062, at 5-6 (Nov. 23, 2021) (mem. dec)
(discussing VA examination procured when veteran claimed condition was secondary to service3
connected psychiatric disability, to include medication prescribed for that disability). Accordingly,
the Board clearly erred in not addressing Mr. Gallegos’ explicitly raised theories of service
connection.
Because remand is warranted, the Court need not address Mr. Gallegos’s argument that his
tobacco use disorder serves as an intermediary step between his major depressive disorder and ED.
See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009). Although VA compensation is generally
precluded for a disability caused by a veteran’s use of tobacco in service, neither 38 U.S.C. § 1103
(“Special provisions relating to claims based upon effects of tobacco products”) nor its
implementing regulations bar awarding service connection on a secondary basis—that is, where a
tobacco-related disability is caused or aggravated by a primary service-connected disability like
major depressive disorder. As the veteran correctly notes, VA’s General Counsel Precedential
Opinion 6-2003 (Oct. 28, 2003) permits such a claim under certain circumstances.
Mr. Gallegos
is free to submit this argument and others on remand, which the Board must duly consider. Kay v.
Principi, 16 Vet.App. 529, 534 (2002).
Based on the foregoing, the part of the November 16, 2020, Board decision denying service
connection for ED is VACATED and REMANDED for readjudication consistent with this
opinion. The balance of the appeal is DISMISSED.
DATED: July 22, 2022
Copies to:
Stephani Bennett, Esq.
VA General Counsel (027)

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