Citation Nr: 18139885 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-40 791 DATE: October 1, 2018 ORDER Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected anxiety disorder is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected anxiety disorder is denied. FINDINGS OF FACT 1. Obstructive sleep apnea was not shown in service or for several years thereafter, and the most probative evidence indicates that the Veteran’s obstructive sleep apnea is not related to service or caused or aggravated by his service-connected anxiety disorder. 2. Erectile dysfunction was not shown in service or for several years thereafter, and the most probative evidence indicates that the Veteran’s erectile dysfunction is not related to service or caused or aggravated by his service-connected anxiety disorder. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for establishing entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1991 to September 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the case was remanded for a hearing on the issues. Thereafter, in May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes claims for service connection for fatigue and a respiratory disability other than sleep apnea were the subject of a Board hearing by another VLJ, and were remanded in May 2018. Those issues have not yet returned to the Board and will be the subject of a later Board decision, if necessary. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (2017). 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to the service-connected anxiety disorder The Veteran contends that his sleep apnea is related to service, or in the alternative, related to his service-connected anxiety disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records are negative for treatment for or complaints of sleep apnea or sleep problems. VA treatment records show the Veteran was not diagnosed with sleep apnea until July 2012 by sleep study. The Veteran underwent a VA examination in April 2014 and an addendum opinion was obtained from the same physician in July 2015. That examiner opined that the Veteran’s sleep apnea is not at least as likely as not related to an in-service injury, event, or disease, including the in-service treatment for respiratory complaints. The April 2014 examiner’s rationale was that the service treatment records do not show obstructive sleep apnea or asthma. The in-service transient reactive airway disease resolved with no residuals. The July 1995 separation physical was silent for reactive airway disease and/or residuals and silent for sleep apnea. Immediate post-service medical records were silent for obstructive sleep apnea. The examiner stated that the January 1996 VA examination was reviewed where the Veteran reported having shortness of breath so severe that it woke you up at night, of uncertain etiology. The examiner stated that she could not speak of etiology without resorting to mere speculation; however, in this report, the examiner reported periods of interpersonal conflict/stress/charges of assault and final diagnosis of charges of assault, reported depression, emotional lability and difficulty controlling temper. She stated the was insufficient objective medical evidence to support a clinical diagnosis of obstructive sleep apnea based on the January 1996 report. The examiner stated that obstructive sleep apnea was diagnosed by 2012 and 2013 sleep studies (17-18 years post service). The examiner stated that weight gain since military service and BMI of 32 predisposes to obstructive sleep apnea. The preponderance of medical evidence and expertise reveals the proximate cause of obstructive sleep apnea to be a developmentally narrow oropharyngeal airway, often with superimposed elevation of BMI (creating encroachment of airway with fatty soft tissues) and/or natural aging (encroachment of airway with floppy soft tissues). The examiner stated that the January 1996 VA examination was reviewed where the Veteran reported having shortness of breath so severe that it woke you up at night, of uncertain etiology. The examiner stated that she could not speak of etiology without resorting to mere speculation; however, in this report, the examiner reported periods of interpersonal conflict/stress/charges of assault and final diagnosis of charges of assault, reported depression, emotional lability and difficulty controlling temper. She stated the was insufficient objective medical evidence to support a clinical diagnosis of obstructive sleep apnea based on the January 1996 report. The July 2015 addendum opinion was obtained from the April 2014 examiner, who opined that it is less likely than not that the Veteran’s obstructive sleep apnea had its onset in service or is otherwise the result of a disease or injury in service. The examiner’s rationale was in-service acute and transient reactive airway disease resolved without residuals or recurrence (in 1993). Subsequent service treatment records, including the July 1995 separation physical and immediate post-service medical records are silent for obstructive sleep apnea. The obstructive sleep apnea was diagnosed by 2012 and 2013 sleep studies (17-18 years post-service). The examiner stated that there was no objective clinical evidence that the Veteran has a developmentally narrow oropharyngeal airway and noted that stated the July 1995 service treatment record separation examination showed weight of 160 pounds and was silent for complaint, symptoms, or diagnosis of obstructive sleep apnea. She further noted the May 2013 Sleep Study reports exogenous obesity, BMI of 32, and weight of 225 pounds (which was a 65-pound weight gain post-service), with a final diagnosis of obstructive sleep apnea and recommendations for CPAP and “weight control below a BMI of 30 is expected to improve all abnormalities independently.” The examiner noted that risk factors for obstructive sleep apnea remain elevation of BMI (creating encroachment of airway with fatty soft tissues) and/or natural aging (encroachment of airway with floppy soft tissues). These facts indicate that the obstructive sleep apnea is less likely than not caused by or related to the Veteran’s military service. The examiner opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The record also contains a conflicting medical opinion regarding whether the Veteran’s sleep apnea and various other conditions are at least as likely as not related to an in-service injury, event, or disease. Private treatment records dated in March 2013 from practitioner V.O. shows diagnoses of obstructive sleep apnea, asthma, left lower lobe bacterial pneumonia, and substantial industrial exposure to pesticides, concreate, and diesel fuel contributing to asthma. Dr. V.O. stated that the Veteran was a contractor who worked with low observable coating, worked in mosquito control for two years, worked in construction, and had concrete and dust exposure. Dr. V.O. stated that the Veteran’s current condition is related to his exposure to airborne contaminants while serving in Somalia. However, the opinion from the Dr. V.O. provided no rationale for his conclusion nor did he take into account the medical evidence of record. In addition, Dr. V.O. did not identify the specific condition, identify objective evidence, and did not explain the possibility of relation to post-service exposures, such as the Veteran’s reported exposure to low observable coating, mosquito control chemicals, construction, concrete, or dust exposure. Thus, the Board finds the opinion is entitled to no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Turning to secondary service connection as a theory of entitlement, the question for the Board is whether the Veteran’s sleep apnea is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected anxiety disorder. The Board concludes that the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected anxiety disorder. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The VA April 2014 examiner opined that the preponderance of medical evidence and expertise reveals the proximate cause of obstructive sleep apnea to be a developmentally narrow oropharyngeal airway, often with superimposed elevation of BMI (creating encroachment of airway with fatty soft tissues) and/or natural aging (encroachment of airway with floppy soft tissues). These facts indicate that the Veteran’s obstructive sleep apnea is less likely than not caused by, related to, or aggravated by his service connected anxiety disorder. In the July 2015 addendum opinion, the same examiner stated that it is less likely than not that the Veteran’s obstructive sleep apnea was either proximately caused by or proximately aggravated by the Veteran’s service connected anxiety disorder. The examiner stated that there is insufficient medical evidence of in-service causation or aggravation of obstructive sleep apnea by service connected anxiety disorder. The examiner noted the January 1996 VA examination was reviewed where the Veteran reported having shortness of breath so severe that it woke him up at night, of uncertain etiology. The examiner stated that she could not speak of etiology without resorting to mere speculation; however, in this report, the examiner at that time reported periods of interpersonal conflict/stress/charges of assault and final diagnosis of charges of assault, reported depression, emotional lability and difficulty controlling temper. She stated the was insufficient objective medical evidence to support a clinical diagnosis of obstructive sleep apnea based on the January 1996 report. There is no competent medical evidence establishing that the Veteran’s sleep apnea was caused or aggravated by his service-connected anxiety disorder. To the extent that the Veteran believes that his current sleep apnea is related to service or to his service-connected anxiety disorder, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of sleep apnea is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of sleep apnea is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinions of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the preponderance of the competent, credible, and probative evidence indicates that obstructive sleep apnea was not shown in service, and the most probative evidence of record is against a finding that the Veteran’s current obstructive sleep apnea is related to service or caused or aggravated by his service-connected anxiety disorder. Accordingly, the claim for service connection for obstructive sleep apnea is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for erectile dysfunction, to include as secondary to the service-connected anxiety disorder The Veteran contends that his erectile dysfunction is related to his service-connected anxiety disorder. The question for the Board is whether the Veteran has a current diagnosis of erectile dysfunction that is proximately due to or the result of, or was aggravated beyond its natural progress by his service-connected anxiety disorder. The Board concludes that, while the Veteran has a current diagnosis of erectile dysfunction, the preponderance of the evidence is against finding that the Veteran’s erectile dysfunction is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected anxiety disorder. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The November 2011 VA examiner opined that the Veteran’s erectile dysfunction is less likely than not due to or the result of his service-connected anxiety disorder. The rationale was review of records, including psychiatry notes, found no objective evidence for connection between erectile dysfunction and anxiety. In this regard, the examiner noted that while the Veteran’s VA treatment records document testicular pain, an ultrasound showed cystocele and/or dysuria with erectile dysfunction. She stated that dysuria is of unknown etiology and no cause/effect relationship is present for cystocele and/or dysuria with erectile dysfunction. The examiner also stated that she reviewed the Veteran’s medications and found no side effects relating to erectile dysfunction. An addendum opinion was obtained in September 2015. The VA examiner opined that the Veteran’s erectile dysfunction is instead more likely due to/aggravated by increasing age, hyperlipidemia, and obesity and less likely than not proximately due to or the result of the Veteran’s service-connected anxiety disorder and/or anxiety disorder medications. As rationale, the examiner stated that the Veteran’s private treatment records reveal a note dated May 30, 2015 from the Pulmonary Associates of Bay County which stated that he had a history of heavy alcohol use in the past, asthma, and noted him to be obese. VA treatment records show he had a medical problem of hyperlipidemia and his erectile dysfunction was noted to have occurred on the note dated May 10, 2007, when he would have been 35 years old. The medications that he takes for his anxiety disorder have included that of Sertraline, Buspirone, Trazadone, Citalopram, and Hydroxyzine. The examiner explained that erectile dysfunction has the risk factors of associated age, medications, hypertension, obesity, hyperlipidemia, smoking, and psychogenic factors that would make one have an increased likelihood of developing this condition. According to Up to Date, Sertraline was associated with a 1-10 percent incidence of impotence, Buspirone was not mentioned as having issues with impotence, Trazodone is associated with a less than one percent incidence, Citalopram was associated with a 3 percent incidence which is dose related, and the medical literature for Hydroxyzine does not list impotence as a common side effect that occurs with this medication. According to an October 18, 2013 review of reports from the FDA of 7,837 people reporting side effects with Hydroxyzine, 31 noted impotence which translates to a 0.40 percent incidence. A systematic evaluation of atherogenic risk factors among men with erectile dysfunction reported a prevalence of 44 percent for hypertension, 79 percent for obesity, 74 percent for elevated low-density lipoprotein cholesterol (above 120 mg/dL), 23 percent for diabetes mellitus, and 16 percent for smoking. The examiner stated that several studies have looked at the prevalence of erectile dysfunction. The Massachusetts Male Ageing Study reported a prevalence of 52 percent. The study demonstrated that erectile dysfunction is increasingly prevalent with age. At age 40, approximately 40 percent of men are affected. The rate increases to nearly 70 percent in men aged 70 years. The prevalence of complete erectile dysfunction increases from 5 percent to 15 percent as age increases from 40 to 70 years. Age was the variable most strongly associated with erectile dysfunction. The examiner stated that in the Veteran’s case, he has the risk factors of increasing age, hyperlipidemia, and obesity. Either alone or in concert, they would be more likely to result in the development of the erectile dysfunction than from his anxiety disorder alone. Additionally, the medications that the Veteran takes for his anxiety disorder would not be much of a contributor to the development of the erectile dysfunction due to their low percentages associated with erectile dysfunction. The examiner opined that the Veteran’s erectile dysfunction is less likely than not aggravated beyond its natural progression by the service-connected anxiety disorder and/or anxiety disorder medications. According to the November 2011 VA examination, the Veteran had not had recurrent urinary tract infections, was able to achieve an erection sufficient for penetration and ejaculation without medication, there was no retrograde ejaculation, there were no male reproductive organ infections, he had a normal male gender examination, there were no tumors or neoplasms present related to it, no scars related to the condition or treatment, and it would not interfere with his ability to work. According to VA treatment notes since 2013 to the present time, there have been no new developments which would change the above information. Thus, the erectile dysfunction has been made stable without any new complications for a considerable period of time. There have been no aggravations that have arisen due to the service-connected anxiety disorder and/or anxiety disorder medications. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s erectile dysfunction is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are silent as to any complaints of, treatment for, or diagnosis of erectile dysfunction. While the 2011 VA examiner stated that a cystoscopy was performed during active duty for complaints of dysuria and hesitancy, with no abnormality found, the examiner explained that an ultrasound contained in his VA treatment records showed cystocele and no other abnormality, that dysuria is of unknown etiology, and there is no cause/effect relationship present for cystocele and/or dysuria with erectile dysfunction. Finally, to the extent that the Veteran believes that his erectile dysfunction is related to service or to his service-connected anxiety disorder, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of erectile dysfunction is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of erectile dysfunction is not competent medical evidence. See Jandreau, 492 F.3d 1376-77. Thus, the Board finds the opinions of the VA examiners to be significantly more probative than the Veteran’s lay assertions. In sum, the preponderance of the competent, credible, and probative evidence indicates that erectile dysfunction was not shown in service, and the most probative evidence of record is against a finding that the Veteran’s current erectile dysfunction is related to service or caused or aggravated by his service-connected anxiety disorder. Accordingly, the claim for service connection for erectile dysfunction is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz, 274 F.3d at 1364 (2001); Gilbert, 1 Vet. App. at 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Medina, Associate Counsel