Citation Nr: 18151101 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 13-16 903 DATE: November 16, 2018 ORDER Entitlement to service connection for depressive disorder, secondary to service-connected epididymitis, is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for epididymitis prior to April 2, 2009, and a rating in excess of 10 percent thereafter, notwithstanding the period from January 17, 2012, to February 29, 2012, during which a temporary total evaluation under 38 C.F.R. § 4.30 was in effect, is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the appellant’s depressive disorder is causally related to service-connected epididymitis. CONCLUSION OF LAW The criteria for entitlement to service connection for depressive disorder, secondary to epididymitis, have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the Army from August 1974 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for depression, sleep apnea, and a compensable rating for epididymitis. The appellant filed a timely Notice of Disagreement (NOD), received in January 2012. A Statement of the Case (SOC) was issued in May 2013. A timely substantive appeal was received in June 2013. A Supplemental Statement of the Case (SSOC) was issued in August 2018. During the course of the claim, a May 2013 rating decision increased the rating for epididymitis to 10 percent, effective April 2, 2009, and awarded a temporary total evaluation from January 17, 2012, through February 29, 2012, for convalescence. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Depressive Disorder The Board finds that service connection for depressive disorder, secondary to epididymitis, is warranted. The appellant was afforded a VA examination in September 2011. The claims file was reviewed. The appellant was diagnosed with dysthymic disorder and cluster three personality features. The examiner opined that the appellant’s depression was less likely than not secondary to his service-connected epididymitis. The examiner stated that it was unclear whether such had caused clinically significant impairment in the appellant’s mental health. The dysthymic disorder diagnosis accounted for chronic, subclinical depressive symptoms, which tend to be manifested by irritability and low frustration tolerance. The examiner opined that chronic unemployment, which had greatly deteriorated self-image and financial status, was a larger contributor to present symptoms than epididymitis. In October 2011, a VA physician noted that the appellant contended that he developed depression as a result of his epididymitis. Following review of the appellant’s records, the VA physician was unable to resolve the issue without resort to mere speculation. The examiner opined that the appellant’s current depression was not related to his epididymitis, but conceded that such was merely speculation. The Board affords this opinion minimal probative weight as the VA physician himself indicated that it was merely speculative. While it appears that the RO did not consider the examination report and opinion, the appellant was afforded another VA psychiatric examination in December 2014. The claims file was reviewed. The appellant was diagnosed with persistent depressive disorder and unspecified neurocognitive disorder. The VA psychologist opined that it was at least as likely as not that the appellant’s depressive disorder was caused by or a result of his service-connected epididymitis. The pain and reduced quality of sex life caused by such were contributing factors to the appellant’s past and current levels of depression. Pain and depression were essentially comorbid, occurring at the same time. The VA psychologist noted that depression was often overlooked, misdiagnosed, or underdiagnosed in individuals affected by chronic pain. The Board finds that the September 2011 and December 2014 VA medical opinions are well-reasoned and entitled to great probative weight. As one is negative, while the other is positive, the evidence is in relative equipoise. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for depressive disorder, secondary to epididymitis. REASONS FOR REMAND Sleep Apnea A VA medical opinion was obtained in November 2011. The VA physician opined that it was less likely than not that the appellant’s sleep apnea was caused by or a result of his service-connected epididymitis. In a February 2014 hearing before a Decision Review Officer (DRO), the appellant testified that he had sleep problems while on active duty. However, he was counseled to keep his use of sleeping pills out of his service treatment records by a sergeant. Rather, as a cook, he exchanged cookies and other items from the mess hall for sleeping pills from medical staff. He and his representative also explained that they contended the appellant developed sleep apnea as a direct result of his active service, rather than as secondary to epididymitis. The Board finds that the appellant should be afforded an appropriate examination to determine the nature and etiology of his sleep apnea. While a negative opinion was obtained in November 2011, such is inadequate as it only addresses service connection secondary to epididymitis, and not on a direct basis. Further, the appellant and his representative indicated during the February 2014 DRO hearing that they did not contend that sleep apnea was caused or aggravated by service-connected epididymitis. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Epididymitis Since the issuance of the August 2018 SSOC, additional VA medical records have been associated with the claims file. These relevant records include a September 2018 pain consult note which details the appellant’s report of constant sharp left testicular pain with swelling. Another genitofemoral nerve block was discussed. The appellant was amenable to such a procedure, but wanted to try oral medications first. The Board finds that this clinical note indicates that the appellant’s epididymitis symptoms appear to have worsened since his last examination. Thus, he should be afforded a new examination upon remand to determine the severity and manifestations of his epididymidis. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The matters are REMANDED for the following action: 1. Afford the appellant an appropriate examination to determine the current severity and manifestations of his service-connected epididymitis. The claims file must be made available to the examiner for review in connection with the examination. The examination should be performed in accordance with the current disability benefits questionnaires. 2. Schedule the appellant for an examination with a suitably qualified clinician regarding the nature and etiology of his sleep apnea. Access to records in the appellant’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. After examining the appellant and reviewing the claims file, the clinician is to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that sleep apnea was incurred during the appellant’s active service, or is otherwise causally related to this active service or any incident therein? In providing this opinion, the examiner should consider the relevant evidence of record, to include the appellant’s contentions that he was provided sleeping pills off the record while on active duty. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should reference any relevant evidence of record. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel