Citation Nr: 1808204 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-02 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for insomnia, to include as due to undiagnosed illness and/or as secondary to service-connected disabilities. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Olufunmilola A. Akintan, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1997. These matters are before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional office (RO) in Muskogee, Oklahoma. In November 2015, a video conference hearing was held before the undersigned. A transcript is associated with the record. In a December 2016 Board decision, the Board recharacterized the Veteran's claim for entitlement to service connection for a sleep disorder as two separate issues, one for insomnia, and one for other sleep problems, including sleep apnea and nightmares, including as secondary to service-connected disabilities. The Board denied the claim with respect to sleep apnea and nightmares and remanded the insomnia claim for further development. The issue of entitlement to service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A July 2011 rating decision granted service connection for insomnia. CONCLUSION OF LAW The Board lacks jurisdiction over the claim of service connection for insomnia because that claim has been granted and is therefore moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION A close review of the record reveals that the July 2011 rating decision granted service connection for posttraumatic stress disorder, to specifically include insomnia. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Here, as a result of the AOJ's actions, there no longer remains a case or controversy with respect to service connection for insomnia. Therefore, the Board lacks jurisdiction over this issue because it has been granted, so any appeal as to that issue is therefore moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Therefore, dismissal of this claim is warranted. ORDER The appeal as to the claim of service connection for insomnia is moot, and the claim is dismissed for lack of jurisdiction. REMAND Regarding the issue of service connection for erectile dysfunction, a supplemental medical opinion is necessary. An August 1993 service treatment record showed the Veteran complained of irritation to the genital area and indicated that it started approximately one month earlier. The Veteran reported the irritation bothered him for more than a week with a somewhat tingling sensation and burning on the head of the penis. It indicated the Veteran thought it was because he is uncircumcised. The treating provider assessed it as a normal examination. A May 1999 outpatient treatment record showed the Veteran complained of erectile dysfunction and indicated it started approximately one year earlier. The Veteran reported he could achieve a partial erection, but unable to maintain it throughout intercourse. The treating provider assessed it as erectile dysfunction; idiopathic and prescribed medication, Viagra. An August 2001 outpatient record noted that the Veteran was using Viagra for ED with good results, and the plan was to continue Viagra. In his January 2013 VA Form 9, the Veteran contends that while in the US Army, he had and continues to have erectile dysfunction due to multiple medications and that his sex life has worsened. At the November 2015 hearing, the Veteran testified that after the Gulf war, he took medications for his service-connected disabilities that made the erectile dysfunction worse. In a December 2016 remand, the Board requested a supplemental medical opinion as to the current nature and likely etiology of the Veteran's erectile dysfunction with respect to PTSD. In a March 2017 VA examination report, the examiner opined that "the claimed condition, erectile dysfunction, is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition, PTSD." The examiner based her rationale in part on the fact that the Veteran was not treated for erectile dysfunction until 2011 (19 years after his first symptoms and 15 years after service). However, as noted above, the Veteran's medical record showed he began receiving treatment for erectile dysfunction, including Viagra, since May 1999. As the rationale for the December 2016 appears to be based, in part, on an inaccurate factual premise, a supplementary opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should attempt to secure complete copies of the clinical records of all VA and non-VA treatment the Veteran has received for his erectile dysfunction not already associated with the record. 2. Please request a supplemental medical opinion with respect to whether the Veteran's erectile dysfunction was caused or aggravated by his PTSD from the March 2017 opinion provider, if available, or from another appropriate clinician, if the March 2017 opinion provider is not available. The clinician is asked to address the following question: The rationale for the March 2017 opinion was, in part, that the Veteran's erectile dysfunction was less likely than not caused or aggravated by his service-connected PTSD because "he was not treated for ED until 2011." However, medical evidence in the record shows that the Veteran was prescribed Viagra as early as 1999 for ED and that he was still taking Viagra for ED with good results in 2001. • Does the fact that the Veteran was prescribed Viagra as early as 1999 (and not 2011) for treatment of ED change the opinion that it is less likely than not that ED was caused or aggravated by PTSD, including medication therefor? The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 3. The AOJ should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claim on appeal. If any benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs