Citation Nr: 20003591 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 18-21 132 DATE: January 15, 2020 ORDER Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to a rating higher than 10 percent for ischemic heart disease is dismissed. New and material evidence having been received, the claim for service connection for obstructive sleep apnea is reopened. New and material evidence having been received, the claim for service connection for erectile dysfunction is reopened. Service connection for erectile dysfunction, as secondary to service-connected diabetes mellitus type II, and/or ischemic heart disease, is denied. REMANDED Service connection for obstructive sleep apnea is remanded. A separate compensable rating for diabetic retinopathy, right eye is remanded. FINDINGS OF FACT 1. At an October 2019 hearing before the Board, prior to the promulgation of a decision in the appeals, the Veteran withdrew the claims for increased ratings for PTSD and ischemic heart disease. 2. Evidence received subsequent to an April 2010 final denial of the claims for service connection for obstructive sleep apnea and service connection for erectile dysfunction is new, and is also material, because it raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence of record is against a finding that erectile dysfunction is proximately due to, the result of or made worse beyond its natural progression by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an increased rating for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of an increased rating for ischemic heart disease have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. As new and material evidence has been received since the final April 2010 rating decision, the requirements to reopen the claim for service connection for obstructive sleep apnea have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. As new and material evidence has been received since the final April 2010 rating decision, the requirements to reopen the claim for service connection for erectile dysfunction have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 5. The criteria for service connection for erectile dysfunction as secondary to a service-connected disability are not 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 June 1966 to March 1968. Withdrawal 1. PTSD and ischemic heart disease 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. At an October 2019 videoconference hearing before the Board, the Veteran withdrew the claims for an increased rating for PTSD and ischemic heart disease. As such, there remains no allegations of errors of fact or law for appellate consideration. The Veteran was represented at the hearing, had discussed the matter with the representative, and is presumed to understand the impact of the decision. Accordingly, the Board does not have jurisdiction to review the appeals and the claims for increased rating for PTSD and ischemic heart disease are dismissed. New and Material Evidence Generally, VA rating decisions that are not timely appealed are final. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. §§ 5108, 7105. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 2. Obstructive sleep apnea and erectile dysfunction An April 2010 rating decision denied service connection for obstructive sleep apnea because there was no evidence that the disability was incurred in or caused by military service. The decision also denied service connection for erectile dysfunction because there was no evidence it was incurred in or caused by military service, or that it was related to prolonged medication from service-connected disabilities. At a February 2010 VA examination, the examiner stated she was unable to render an opinion regarding nexus for erectile dysfunction without resorting to mere speculation. The relevant evidence of record at that time included the Veteran’s statements, service medical records, and the February 2010 VA examination for erectile dysfunction. The Veteran submitted a timely notice of disagreement in April 2011, and a statement of the case was subsequently issued in April 2012. In June 2012 the Veteran submitted an appeal form to the Board. At an April 2013 informal hearing conference, the Veteran through his representative withdrew the claims for service connection for obstructive sleep apnea and erectile dysfunction. Therefore, the April 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. Briefly reviewing the evidence submitted since the April 2010 decision, an April 2011 private medical record provided an opinion regarding the disabilities. That evidence which was not of record at the time of the April 2010 rating decision relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claims for service connection for obstructive sleep apnea and erectile dysfunction are reopened.   Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. To establish a service connection for a 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. In cases of aggravation of a non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. §§ 3.310, 3.322; Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996).   3. Erectile dysfunction While the Regional Office indicated the claim was not reopened, the merits of the claim were otherwise discussed and contentions have been made concerning primary and/or secondary service connection. As such, the Board may proceed to the merits. The Veteran contends that current erectile dysfunction is related to service-connected disabilities, specifically PTSD, diabetes mellitus type two, and/or ischemic heart disease, including prolonged medication use. The medical evidence shows that the Veteran has a current diagnosis of erectile dysfunction. Service treatment records are silent as to complaints, treatment, or diagnoses related to erectile dysfunction. The Veteran had a normal enlistment examination in April 1966. In a February 1968 separation examination, clinical examination was normal. As the Veteran has a current diagnosis of erectile dysfunction that is not directly related to service, the issue before the Board is whether the Veteran’s current erectile dysfunction is primarily due to or aggravated by his service-connected PTSD, diabetes mellitus type two, and/or ischemic heart disease. The Veteran’s post-service treatment records indicate that that the Veteran was first treated for erectile dysfunction and low testosterone in 2006. At a February 2010 VA examination, the Veteran reported the erectile dysfunction began in 2006. The examiner noted that the Veteran had been on testosterone replacement therapy since April 2009, receiving testosterone injections every two weeks. The examiner diagnosed erectile dysfunction and opined that she was unable to render an opinion without resorting to mere speculation as there were multiple factors present that may contribute to erectile dysfunction. In a March 2011 private medical letter, the Veteran’s primary care physician stated that the Veteran reported erectile dysfunction had been a problem since his diagnosis of diabetes mellitus in 2002. The Veteran had injections and used topical agents to raise his testosterone, as well as oral medications to help with the condition. The physician stated that erectile dysfunction was a common side effect of both diabetes mellitus and hypertension. At a February 2014 VA examination, the Veteran reported erectile dysfunction beginning in 2006. The examiner found that there was no objective medical evidence that the Veteran’s erectile dysfunction was due to or aggravated beyond its normal progression by service-connected PTSD, diabetes mellitus, type II, or ischemic heart conditions. The examiner opined that the erectile dysfunction was most likely caused by or the result of risk factors that the Veteran had, including “hypogonadism, tobacco use in remission, alcohol use, dyslipidemia, hypertension, age, etc.” Further, the examiner noted that the Veteran had normal renal function and that his diabetes was under excellent control. After review of the evidence, the Board finds that a preponderance of the evidence is against the claim for service connection for erectile dysfunction. The medical evidence indicates that the Veteran was diagnosed with erectile dysfunction in 2006, many years after service. There were no in-service complaints or treatments related to erectile dysfunction. Regarding secondary service connection, the Board affords the February 2014 examiner’s opinion significant probative value as it is offered by a medical professional following a review of the claims file and application of relevant medical principles to the facts of the case, with a rationale consistent with the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Regarding the March 2011 private medical letter, the Board finds that the statement less probative, as the physician merely stated that erectile dysfunction can be a common side effect of diabetes and hypertension, but did not specifically address the Veteran’s case or provide a rationale for the opinion. Moreover, the recorded history of onset in 2002 seems at variance with the rest of the evidence on file. The Board acknowledges the Veteran’s statements and opinion that the erectile dysfunction is secondary to service-connected diabetes and/or ischemic heart disease. While the Veteran is competent to report observable symptoms, the issue of nexus in this case is a complex medical question, which is not something that can be determined by mere observation. The question of the cause of the Veteran’s symptoms or any medical association with service-connected disabilities is not an observable fact; it requires clinical testing and/or knowledge to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions for causation or association. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, the Board finds that the Veteran’s statements as to how his erectile dysfunction was caused are not competent evidence as to nexus. In sum, the most probative evidence of record shows that the current erectile dysfunction was not incurred in service and was not caused or aggravated by service-connected PTSD, diabetes mellitus, type II, and/or ischemic heart disease. Accordingly, the claim for service connection for erectile dysfunction must be denied. In reaching this decision the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND 4. Obstructive sleep apnea VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, a remand is necessary to obtain a VA examination.   5. A separate compensable rating for diabetic retinopathy The Board finds that a more contemporaneous VA examination is required to properly assess the current severity of the disability. The Veteran was provided a VA examination in August 2016. While, generally, the mere passage of time is not a sufficient basis for a new examination, further allegations of a worsening condition have been set forth by the Veteran since the prior examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Specifically, in correspondence dated in April 2018, the Veteran’s representative indicated that diabetic retinopathy had worsened. The matters are REMANDED for the following action: 1. Associate any pertinent VA or private medical records that are not already of record with the claims file. The Veteran’s assistance in identifying and obtaining the records should be requested as needed. All attempts to obtain records should be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any sleep apnea disability. The examiner must review the claims file, including the lay testimony of the Veteran, and should note that review in the report. The rationale for all opinions should be provided. The examiner should explicitly provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that any sleep apnea disability was incurred during service, is due to any event, disease, or injury during service? (b.) Is it at least as likely as not (50 percent or greater probability) that any sleep apnea disability is due to or the result of service-connected disabilities, including PTSD, ischemic heart disease, and/or diabetes mellitus? (c.) Is it at least as likely as not (50 percent or greater probability) that any sleep apnea disability has been aggravated (permanently increased in severity beyond the natural progression of the disability) by service-connected disabilities, including PTSD, ischemic heart disease, and/or diabetes mellitus? 3. Schedule the Veteran for a VA eye examination to determine the current nature and severity of service-connected diabetic retinopathy, right eye. The examiner must review the claims file and should note that review in the report. Any and all studies or tests deemed necessary should be performed. The examiner should elicit information about the nature of the retinopathy and symptoms when present, even if not present at the time of the examination. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s retinopathy and should discuss the effect of the disability on any occupational functioning and activities of daily living. If no signs of diabetic retinopathy are found, that too should be specifically set out.   4. Review the record to determine that all appropriate development has been accomplished, if not, take corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.