Citation Nr: 18141597 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 16-06 276 DATE: October 11, 2018 ORDER Service connection for sleep apnea is denied. Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for voiding dysfunction is granted. FINDINGS OF FACT 1. The Veteran’s sleep apnea did not have onset in service and is not related to service. 2. Competent evidence of record shows erectile dysfunction and voiding dysfunction are secondary to medication prescribed for service-connected bipolar disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for voiding dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to September 1990, with additional National Guard service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran’s claims file. 1. Entitlement to service connection for sleep apnea Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran seeks service connection for his sleep apnea. He contends it began in service and has continued since. See October 2014 notice of disagreement; January 2016 VA Form 9; Hearing Transcript, 2-4. The service treatment records contained no complaints, history or findings consistent with sleep apnea. On separation from service, in a September 1990 Report of Medical History, the Veteran denied a history of shortness of breath or frequent trouble sleeping. On examination, the Veteran’s nose, sinuses, lungs and chest were clinically evaluated as normal. After service, the Veteran reported he was in good health and denied shortness of breath and frequent trouble sleeping on his September 1993 Report of Medical History for National Guard enlistment purposes. On examination, the Veteran’s nose, sinuses, lungs and chest were clinically evaluated as normal. The Veteran reported being diagnosed with sleep apnea in 2005, but that the record was lost due to Hurricane Katrina. In December 2008, the Veteran was diagnosed with obstructive sleep apnea pursuant to a private sleep study. In July 2013, the Veteran submitted lay statements from N.B. and A.G.D. N.B. served with the Veteran during basic training and recalled him snoring every night. Sometimes, the Veteran would make choking noises, stop breathing, and then loudly gasp for breath. A.G.D. married the Veteran during service and recalled him snoring and gasping for air during and since service, until he sought treatment many years later. The Veteran underwent a VA contract examination in September 2013. The examiner did not provide a diagnosis for sleep apnea, but noted that the Veteran was on medication for a sleep disorder condition and used a continuous positive airway pressure (CPAP) machine. The examiner also reviewed the December 2008 private sleep study and recorded that a nasal CPAP and heated humidifier were prescribed, but did not provide a medical opinion or rationale. In an October 2013 addendum opinion the examiner opined that the sleep apnea condition was less likely than not related to service, since there was a 13-year gap between service and the formal diagnosis made in 2008. However, the Board finds these opinions inadequate, as the Veteran’s submitted lay statements were not considered in these opinions. An adequate rationale was also not provided. Another addendum opinion was requested in December 2015 to consider the lay contentions by the Veteran, N.B., and A.G.D. The examiner reviewed the Veteran’s claims file, including the lay statements, the prior VA contract examination, and subsequent addendum opinion. After review, the examiner opined that the Veteran’s sleep apnea was less likely than not related to service. The examiner explained that the signs and symptoms reported by the Veteran, N.B., and A.G.D. that occurred during service are not diagnostic of obstructive sleep apnea (OSA) and lack causation. The rationale was that studies have shown that patients with diagnosed OSA can have periods of snoring, pauses in their breathing, and gasping. While these particular signs and symptoms of snoring, pauses in sleeping, and gasping are sensitive for an OSA condition, they are not specific to diagnosing OSA. No studies have established that these signs and symptoms cause OSA. The examiner noted that the Veteran was diagnosed during a sleep study conducted in 2008, although the Veteran reported he was diagnosed in 2005, and both are many years after separation from service. After a review of the evidence, the Board finds that service connection for sleep apnea is not warranted. The Veteran has been diagnosed with obstructive sleep apnea pursuant to a private sleep study in 2008. Accordingly, the first element of service connection, a current disability, has been established. He reported that he has had snoring and breathing problems during and since separation from service, which satisfies an in-service event. The question before the Board, therefore, is whether such condition is related to service; this third element has not been satisfied. The Veteran’s service treatment records contained no complaints of or treatment for trouble sleeping or breathing problems. He was not provided with a diagnosis for sleep apnea during active service. There was no diagnosis of sleep apnea until the December 2008 sleep study, which is many years after service. The Board further notes that no competent medical evidence is of record that supports a finding that the Veteran’s sleep apnea began in service or is directly related to active service. The opinion expressed by the December 2015 VA examiner is against such a finding. The Board notes that the examiner was familiar with the Veteran’s medical history from review of his VA claims folder and the opinion expressed on this matter was supported by cogent rationale which referenced the Veteran’s documented medical history. There is no competent opinion to the contrary. The Board has considered the lay contentions provided by the Veteran, N.B., and A.G.D. that his sleep apnea is due to service. However, diagnosing sleep apnea and determining its etiology is not a simple question. Rather, this is a complex medical determination that falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, while the Veteran, A.D.G., and N.B. are competent to describe his symptoms, they are not competent to opine on the complex medical question of diagnosing sleep apnea or whether the Veteran’s sleep apnea is related to service. The lay opinions in this regard are insufficient to establish causal nexus, particularly when weighed against the VA examiner’s medical opinion and cogent rationale. As explained by the December 2015 VA examiner, while these particular signs and symptoms are sensitive for OSA, they are not specific to diagnosing OSA. No studies have established that these signs and symptoms cause OSA. As the preponderance of the competent evidence is against the claim, the benefit of the doubt doctrine is not for application, and service connection is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) Entitlement to service connection for erectile dysfunction and urinary voiding dysfunction is granted. At his July 2018 hearing, the Veteran contended that the medications prescribed for his service-connected bipolar disorder caused erectile dysfunction and voiding urinary dysfunction. See Hearing Transcript, 5-11. Specifically, he contended that his trazodone, quetiapine fumarate, and paroxetine medications proximately caused his conditions. See July 2013 Statement in Support of Claim. VA treatment records showed that he has been on these medications. The treatment records also show complaints of nocturia and an initial prescription of Tamsulosin in July 2013 for the same. There is also evidence that the Veteran has been prescribed Mirtazapine for his service-connected bipolar disorder for many years. At VA-contract examination in September 2013, an examiner provided diagnoses of erectile dysfunction (by the Veteran’s report) and voiding dysfunction (urinary frequency) due to medicine. In an October 2013 addendum opinion, the examiner opined that the voiding dysfunction warranted a possible diagnosis of benign prostate hypertrophy, by history alone (although a full diagnosis could not be made). The examiner’s opinion was “there is no medical data to nexus symptoms to sc mental health condition.” In April 2016, the Veteran’s VA treating psychiatrist submitted a letter in support of his claim. The psychiatrist explained that medication prescribed for his service-connected bipolar condition (i.e. Mirtazapine) caused him to develop urinary frequency and erectile dysfunction, as adverse effects. The letter did not mention the other medications or provide a rationale. The VA contract examiner’s opinion is of lessened probative value as it does not adequately address the question of secondary causation (because it does not address aggravation) and it lacks an adequate rationale. The VA psychiatrist’s opinion also lacks a thoroughly-explained rationale, which lessens the probative value somewhat as well. However, the Board does note that this is the Veteran’s treating psychiatrist, who is presumed to be aware of the adverse effects of psychiatric medication he has prescribed, and familiar with the Veteran’s symptoms. In short, neither opinion outweighs the other. Further, the Veteran’s voiding dysfunction is well-documented in the record, and both clinicians have essentially confirmed a diagnosis of erectile dysfunction. Resolving all reasonable doubt in the Veteran’s favor, service connection for erectile dysfunction and urinary voiding dysfunction secondary to service-connected bipolar disorder is granted. See 38 C.F.R. § 3.310. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel