Citation Nr: 1335737 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-18 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for erectile dysfunction, secondary to service connected diabetes mellitus. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from August 1965 to August 1968. These matters come to the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. The Veteran initially requested a Board videoconference hearing but withdrew his request in August 2012. The Veteran's virtual VA file has been reviewed. FINDINGS OF FACT 1. Erectile dysfunction related to service connected diabetes mellitus. 2. Sleep apnea was not manifest during service or within one year of separation. Sleep apnea is not attributable to service. CONCLUSIONS OF LAW 1. Erectile dysfunction was the result of service-connected diabetes mellitus. 38 C.F.R. § 3.310 (2013). 2. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Letters dated February 2008 and September 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations addressing erectile dysfunction were conducted in August 2008 and August 2010. In light of the favorable outcome, addressing the adequacy of the examinations is unnecessary. The Veteran was not examined by VA in conjunction with the claim of service connection for sleep apnea; however, no such examination is necessary in this case because the evidence of record does not indicate that the disability or symptoms of the disability "may be" associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record is otherwise adequate to establish that the appellant has sleep apnea. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. The analysis in this decision focuses on salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The conditions at issue are not a listed "chronic disease" under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Erectile Dysfunction The Veteran contends that his erectile dysfunction is secondary to his service connected diabetes mellitus. Service connection may be granted for disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2013). In August 2008 a VA diabetes examination was conducted. At the examination the Veteran reported that he has had erectile dysfunction for 15 years (beginning in approximately 1993), which is treated with prescription medication which is effective. He reported being diagnosed with diabetes mellitus nine years prior (in approximately 1999). Based upon the Veteran's reports the examiner opined that the Veteran had erectile dysfunction with no loss of use of creative organ, which was not likely due to diabetes nor aggravated by diabetes as the Veteran reported having erectile dysfunction 15 years prior. In October 2010 another VA diabetes examination was conducted in which the Veteran was noted to have peripheral neuropathy in bilateral feet and hands. In reviewing the Veteran's systems the examiner noted erectile dysfunction and identified the contributing cause and identified the most likely etiology of erectile dysfunction to be diabetic neuropathy. However, in the diagnosis section of the report the examiner noted that the Veteran had erectile dysfunction present prior to diabetes therefore it was not likely due to, related to or aggravated by diabetes. In a June 2011 rating decision service connection for bilateral upper and lower peripheral neuropathy due to diabetes mellitus was granted. The October 2010 examination report is contradictory as the examiner identified the most likely cause of erectile dysfunction to be diabetic neuropathy, but also opined that erectile dysfunction was not related to diabetes. As there is a positive opinion of record linking the Veteran's erectile dysfunction to his service connected diabetic neuropathy, and extending the Veteran the benefit of the doubt, service connection for erectile dysfunction is warranted. The Board notes that the AOJ could have returned the examination report for clarification but did not. Here, there is positive and negative evidence within the same report. The Board shall not remand or add to the backlog of cases in regard to this issue. Sleep Apnea The Veteran contends that he has sleep apnea which began after he returned from Vietnam, after service, in 1970. As an initial matter, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disability is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Upon entry to service in 1965 the Veteran reported no sleep trouble and the medical examination revealed normal lungs and chest. Upon exit from service in 1968 the Veteran again reported no trouble sleeping and the medical examination found normal lungs and chest. In February 2008 the Veteran was diagnosed with sleep apnea based upon a sleep study. At a July 2008 sleep medicine progress note the Veteran reported using a CPAP machine since February 2008. At a March 2009 neuropsychiatric assessment the Veteran reported difficulty sleeping for the past several years which he manages with a CPAP machine In an August 2008 lay statement the Veteran's daughter stated that the Veteran has had sleep apnea since he was in Vietnam and that he was currently treated with a CPAP machine provided through the VA. She reported that she was born in 1970. The Veteran's daughter is competent to report what she has observed. Layno v. Brown, 6 Vet. App. 465, 469 (1994). She would be competent to report things such as remembering the Veteran being tired, or him stating that he had trouble sleeping at night, as those are observable through her five senses, but she has not made any of these types of observational statements. She simply states her opinion that the Veteran has had sleep apnea since Vietnam. As she was not alive when he got out of service in August 1968, her statement as to in-service events is not competent. The earliest indication in the medical records of the Veteran having sleep problems was in February 2008. In April 1981 a general VA examination was conducted in connection with a separate claim. At the time the Veteran reported having shoulder and low back pain, nervousness and headaches. He did not report any difficulty sleeping or any airway problems. We also note that when he first filed a claim for compensation he did not mention a sleep disorder. There is no evidence that the Veteran complained of sleep problems or sought treatment for symptoms of sleep apnea after service until February 2008. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that his sleep apnea, or symptoms thereof, began shortly after service. He is competent to relate that he has the diagnosis and competent to relate when he first started to have manifestations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, there is no lay of medical evidence of a sleep disorder or apnea during service. To the extent that he asserts that it developed in 1970, apnea is not an enumerated chronic disease and not a presumptive disability. As such, neither 38 C.F.R. § 3.303(b) nor 38 U.S.C.A. § 1112 are applicable. Based upon the medical evidence, the prior claims and prior examinations, the most probative evidence establishes that there was a remote onset of sleep apnea and there is no credible evidence linking the remote onset to service. The preponderance of the evidence is against the claim of entitlement to service connection for sleep apnea. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. ORDER Entitlement to service connection for erectile dysfunction, secondary to service connected diabetes mellitus, is granted. Entitlement to service connection for sleep apnea is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs