Citation Nr: 18143500 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-35 169A DATE: October 19, 2018 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, is granted. Entitlement to service connection for erectile dysfunction (ED) is granted. FINDINGS OF FACT 1. The Veteran’s low back and cervical disorders caused his sleep apnea. 2. The Veteran’s low back and cervical disorders aggravated his anxiety. 3. The Veteran’s low back and cervical disorders caused his ED. CONCLUSION OF LAW The criteria for service connection for sleep apnea, anxiety, and ED, as secondary to service-connected low back and cervical disorders, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 2001 and September 2005. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of October 2013 and May 2014 of a Regional Office (RO) of the Department of Veterans Affairs (VA). The undersigned has recharacterized the Veteran's psychiatric claim as indicated above because of Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as claimant's description of history and symptoms; VA should construe claim for service connection based on reasonable expectations of a non-expert claimant). Additionally, the undersigned recognizes that VA previously denied the Veteran's claims for an acquired psychiatric disorder and ED such that he is required to have submitted new and material evidence to reopen his claims. Judicial economy dictates that the undersigned not perform the new and material analysis below given the favorable outcome for these issues. Service Connection Secondary Service Connection Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Issue 1: Entitlement to service connection for sleep apnea The Veteran has sleep apnea. This satisfies the first prong of secondary service connection. VA has service connected his low back and cervical disorders, which it rates as 40 percent and 10 percent disabling, respectively. This satisfies the second prong of secondary service connection. The appeal turns on the third prong of a secondary service connection claim – medical nexus. VA did not examine the Veteran for compensation purposes because it could not find a diagnosis of sleep apnea when it initially denied the claim in May 2014. VA acknowledged a diagnosis in the March 2017 Statement of the Case, but still did not examine the Veteran. The Veteran, in response to the Statement of the Case, submitted a Disability Benefits Questionnaire (DBQ) through counsel in May 2017. This DBQ, together with a statement from Dr. Homer Skaggs, explained how the Veteran's low back and cervical disorders caused his sleep apnea. This satisfies the third prong of secondary service connection. The Veteran has met all three prongs of a secondary service connection claim. Therefore, the Board will grant the appeal. Issue 2: Entitlement to service connection for an acquired psychiatric disorder, to include anxiety The Veteran has anxiety. This satisfies the first prong of secondary service connection. VA has service connected his low back and cervical disorders, which it rates as 40 percent and 10 percent disabling, respectively. This satisfies the second prong of secondary service connection. The appeal turns on the third prong of a secondary service connection claim – medical nexus. VA did not examine the Veteran for compensation purposes for anxiety. The Veteran, in response to the March 2017 Statement of the Case, submitted a Disability Benefits Questionnaire (DBQ) through counsel in May 2017. This DBQ, together with a statement from Dr. Heather Henderson-Galligan, explained how the Veteran’s low back and cervical disorders aggravated his sleep apnea. This satisfies the third prong of secondary service connection. The Veteran has met all three prongs of a secondary service connection claim. Therefore, the Board will grant the appeal. Issue 3: Entitlement to service connection for erectile dysfunction (ED) The Veteran has ED. This satisfies the first prong of secondary service connection. VA has service connected his low back disorder, which it rates as 40 percent disabling. This satisfies the second prong of secondary service connection. The appeal turns on the third prong of a secondary service connection claim – medical nexus. VA did not examine the Veteran for compensation purposes for ED, but it had a physician review the Veteran's file in January 2014. This physician found the Veteran's low back disorder did not cause his ED. In contrast, the Veteran's private chiropractor opined in October 2013 that the Veteran’s low back disorder "very possibly" caused his ED because ED, as a medical condition, is controlled by the nerves of the lumbar spine. The undersigned, considering the severity of the Veteran's low back disorder, finds that these opinions are equipoise. This satisfies the third prong of secondary service connection. The Veteran has met all three prongs of a secondary service connection claim. Therefore, the Board will grant the appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel