Citation Nr: 1409196 Decision Date: 03/05/14 Archive Date: 03/12/14 DOCKET NO. 09-13 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for erectile dysfunction. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to special monthly compensation (SMC) benefits based on the need for housebound status prior to January 29, 2009, or on the need for regular aid and attendance (A&A). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to November 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims for service connection for erectile dysfunction and sleep apnea, and also denied his claim for SMC benefits based on housebound status or on the need for regular A&A. In June 2013, the RO granted SMC based on housebound status from May 6, 2010. A subsequent June 2013 rating decision granted an earlier effective date for the housebound benefits, effective from January 29, 2009. As such, the matter of housebound status prior to January 29, 2009 remains on appeal, in addition to the matter of entitlement to SMC based on the need for regular A&A. The issues of entitlement to service connection for sleep apnea and for SMC benefits are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the criteria for the establishment of service connection for erectile dysfunction have been met. CONCLUSION OF LAW Service connection for erectile dysfunction is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran claims that he suffers erectile dysfunction due to his prostate cancer, to include the medications used to treat his prostate cancer. For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The evidence of record, including VA examination reports, reflects a diagnosis of erectile dysfunction. The Veteran is service connected for prostate cancer. Therefore, the first and second Wallin elements have clearly been satisfied. What remains to be established is whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected prostate cancer. The record contains both positive and negative evidence in this regard. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The positive evidence includes a July 2013 opinion by a VA physician (Dr. Brawn) who opined that prostate cancer (among other causes) is a known cause of erectile dysfunction, and an October 2009 VA examination report that noted that the Veteran suffers from erectile dysfunction, which began in 2006, at least one year after his external radiation therapy, and that prostate cancer radiation therapy is a risk factor for erectile dysfunction. The negative evidence includes a May 2008 VA examiner's opinion that erectile dysfunction is not caused by or related to prostate cancer or treatment thereof. The examiner stated that erectile dysfunction was reported prior to treatment for prostate cancer and the first occurrence was in close proximity to a diagnosis and biopsy for prostate cancer. Additionally, on May 2012 VA examination, the examiner opined that erectile dysfunction was less likely than not due to prostate cancer, and instead was due to age and testicular hypogonadism. The Board acknowledges that the October 2009 and July 2013 opinions indicated that there were other risk factors for erectile dysfunction in addition to the Veteran's service-connected prostate cancer. Nevertheless, the law provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding the etiology of a disability, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Board further notes that, in Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (CAVC or Court) held that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Resolving all doubt in favor of the appellant, the Board concludes that competent medical evidence reflects that it is at least as likely as not that the Veteran's current erectile dysfunction is secondary to his service-connected prostate cancer. Therefore, service connection is warranted for this disability. ORDER Service connection for erectile dysfunction is granted. REMAND The Veteran contends that he suffers sleep apnea as due to his posttraumatic stress disorder (PTSD). A September 2007 private treatment record notes that sleep apnea is a symptom of the Veteran's diagnosed PTSD. On May 2008 VA examination, the examiner opined that there is no nexus in the medical literature to support sleep apnea as being secondary to PTSD. The Board finds that another medical opinion is necessary in order for the examiner to address the question of whether the Veteran's sleep apnea was aggravated beyond the natural progression due to his service-connected PTSD, and to provide a detailed rationale in support of his opinion. With regard to the matter of SMC, preliminary review of the record reveals that the Veteran's overall health is severely impaired. In this regard, the Board notes that the Veteran is service connected for prostate cancer currently rated as 100 percent disabling, PTSD currently rated as 70 percent disabling, hemorrhoids, status post excision of anal fissure with fecal leakage, currently rated 30 percent disabling, coronary artery disease currently rated as 30 percent disabling, diabetes mellitus currently rated 20 percent disabling, tinnitus currently rated 10 percent disabling, and bilateral hearing loss currently rated 0 percent disabling. The Veteran is also in receipt of SMC benefits based on housebound status from January 29, 2009. The underlying question in this case is whether the Veteran's service-connected disabilities result in a disability picture which meets the legal criteria for SMC based on housebound status prior to January 29, 2009, or based on the need for regular A&A. See 38 C.F.R. §§ 3.351, 3.352. The Board notes that the Veteran has not undergone a VA medical examination to specifically assess his need for A&A or housebound status (prior to January 29, 2009). A February 2009 report of independent living is of record, but it is unclear from this report what the Veteran's limitations are due to and when such limitations began. Accordingly, in order to accurately determine whether such benefits are warranted, medical examination(s) and opinion(s) are warranted. Accordingly, the case is REMANDED for the following actions: 1. Obtain any relevant outstanding (not already of record) VA treatment records developed since April 2012. 2. Obtain a medical opinion regarding the Veteran's claim for secondary service connection for sleep apnea. Specifically, an opinion should be provided as to the following: a. Is it at least as likely as not (50% or greater probability) that the currently diagnosed sleep apnea is related to service? b. Is it at least as likely as not (50% or greater probability) that the currently diagnosed sleep apnea was aggravated by (increased in severity due to) his service-connected PTSD? If the opinion is to the effect that the service-connected PTSD aggravated the sleep apnea, the examiner should identify, to the extent possible, the degree of disability that is due to such aggravation. All opinions should be accompanied by detailed rationale consistent with the evidence of record. 3. Schedule the Veteran for an appropriate A&A examination and a retrospective medical opinion as to whether the Veteran was housebound prior to January 29, 2009: a. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or greater) that the Veteran has permanent need for regular aid and attendance due to service-connected disabilities. The examiner should opine whether, as a result of service connected disabilities, the Veteran requires assistance on a regular basis to: dress or undress himself, or keep himself ordinarily clean and presentable; adjust frequently any special prosthetic or orthopedic appliances; feed himself through to loss of coordination of upper extremities or through extreme weakness; attend to the wants of nature; or to protect himself from the hazards or dangers incident to his daily environment; and b. The examiner is asked to provide a retrospective medical opinion as to whether, prior to January 29, 2009, it is at least as likely as not (50% probability or greater) that the Veteran was housebound. Put another way, at any time between March 2007 and January 29, 2009, was the Veteran substantially confined to his dwelling or the immediate premises as a direct result of his service connected disabilities. The claims files and any records received pursuant to the development above should be made available to any examiner in conjunction with examination. All indicated tests or studies should be conducted, and all subjective complaints and objective findings should be reported in detail. The examination report(s) should reflect review of pertinent material in the claims file and include the rationale for all opinions offered. 4. After completion of the above and any further development deemed necessary, readjudicate the claims on appeal. The Veteran and his representative should then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs