Citation Nr: 21004328 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 08-13 302 DATE: January 26, 2021 REMANDED Entitlement to service connection for sleep apnea, as secondary to service-connected major depressive disorder, is remanded. Entitlement to service connection for sexual dysfunction, as secondary to service-connected major depressive disorder, is remanded. REASONS FOR REMAND The Veteran had active service from May 1971 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs. The Board most recently addressed these issues in April 2019. The Board effectively summarized the history of each claim. For convenience, the Board will repeat those summaries here. Sleep apnea The Veteran first filed a claim of entitlement to service connection for a sleep disorder, possibly secondary to a mental disorder, in December 2007. At the time, he reported that he snored badly and sometimes woke up gasping for air. He noted that he had never been treated for the condition, but that he had been told he had sleep apnea when he was trying to qualify to be a test subject for a new arthritis medication. The Veteran underwent a sleep study in January 2018 that diagnosed obstructive sleep apnea. In January 2018, he also underwent a VA examination. At that time, the examiner acknowledged the diagnosis of obstructive sleep apnea. Per the examination report, the Veteran was unable to sleep well upon his return from service. The Veteran also stated that, during service, fellow servicemembers would tell him that he snored loudly. He reported that he underwent a sleep study in approximately 2000 but was awoken in the middle of the study because his heart was stopping. As an aside, the Board notes that VA has made all appropriate efforts to obtain a copy of this study, however, the Veteran has not been able to remember the name of the center where it was conducted, nor has the Veteran been responsive to further efforts to obtain information. The January 2018 examiner did not provide an opinion as to whether sleep apnea was caused by or incurred in service. Accordingly, another examiner reviewed the Veteran’s file in February 2018 in order to provide an addendum opinion. Although the February 2018 examiner provided opinions as to all theories of entitlement, that examiner opined that there was no evidence of an in-service onset of sleep apnea. In doing so, the examiner did not address the Veteran’s statements from the January 2018 examination discussing his difficulty sleeping upon his return from service as well as the claimed in-service comments of fellow servicemembers regarding his snoring. Both of these pieces of information point to the possibility of an in-service onset and an adequate medical opinion must address them. Sexual dysfunction In his December 2007 claim, the Veteran reported that he had difficulty and was sometimes unable to maintain an erection. The Veteran’s treatment records document that he requested a prescription for Viagra during an August 2004 primary care visit, though his medical record is otherwise silent for treatment or complaints of any sexual dysfunction. In March 2013, the Veteran underwent a VA examination. At that time, the examiner noted that there was no discussion of the nature of the Veteran’s erectile dysfunction in the medical record and that, despite the request for a Viagra prescription, it was not clear how long erectile dysfunction had existed. The examiner stated that there was no evidence that the Veteran had erectile dysfunction during service, pointing to the fact that the Veteran had fathered seven children both during and after service. The examiner also noted that the Veteran had multiple risk factors for erectile dysfunction, to include polysubstance abuse, long-standing hypertension, aging, and tobacco use, all of which affect vascular flow. Considering these factors, the examiner concluded that psychological factors would less likely as not be the primary cause of persistent erectile dysfunction. Furthermore, according to the examiner, had erectile dysfunction been primarily related to a service-connected acquired psychiatric disorder, it should have manifested earlier than 2004. The Veteran then underwent a new VA examination in May 2016. At that time, the examiner reported that the Veteran did not have, and had not ever had, a diagnosed condition of the reproductive system. Describing the Veteran’s medical history, the examiner reported that the Veteran had not sought treatment or been prescribed medication for erectile dysfunction. At the time of the examination, the Veteran reported that he had not been diagnosed with erectile dysfunction. Therefore, the examiner concluded, there was not sufficient evidence to warrant a diagnosis of erectile dysfunction. In each of these cases, the medical opinion is inadequate. The Board previously remanded the claim for sexual dysfunction, in part, because the March 2013 examiner did not address whether it was at least as likely as not that the Veteran’s service-connected major depression had aggravated the Veteran’s erectile dysfunction beyond the natural progress of the disease. The Board further notes that the March 2013 examiner provided inconsistent information in concluding that a service-connected psychiatric disorder did not cause erectile dysfunction. The examiner stated that if a psychiatric disorder had been the cause of erectile dysfunction, the onset of erectile dysfunction would have occurred prior to 2004. Previously in the report, however, the examiner stated that the history of erectile dysfunction was unclear, while noting that the only information in the record was the Veteran’s 2004 request for Viagra. Furthermore, the May 2016 examination is inadequate as it did not properly reflect the Veteran’s medical history or previous assertions. The examiner reported that the Veteran had not sought treatment or been prescribed medication for erectile dysfunction. This is clearly untrue, given the above. Furthermore, the examiner relied predominantly on the Veteran’s stated history at the time of the examination. As has been noted by the Board on previous occasions, the Veteran has been determined not to be a reliable historian. The information the Veteran provided in his December 2007 claim is also relevant and must be addressed. Accordingly, on remand, a new medical opinion is necessary in which the examiner addresses the Veteran’s full medical history to answer whether it is at least as likely as not that erectile dysfunction was caused by or incurred in service, to include whether erectile dysfunction was caused or aggravated by any other service-connected condition. Post-April 2019 Remand Sleep apnea The AOJ sought an addendum opinion in December 2019. The reviewer, M.H., stated that she could not opine on the matter because she could not find the January 2018 sleep study in the claims file. The AOJ returned the claims file to the reviewer in June 2020, at which point, she repeated that she could opine on the matter because she could not find the January 2018 sleep study in the claims file. The AOJ, in response, contacted the Veteran in June 2020, and it requested that he provide the January 2018 sleep study because VA did not possess it. The Veteran did not respond. The AOJ, in turn, returned the claims file to the examiner in September 2020, at which point, she repeated that she could not opine on the matter because she could not find the January 2018 sleep study in the claims file. The Board has reviewed the claims file. The January 2018 sleep study is in a March 5, 2018 entry labeled "C&P Exam." It is not clear why neither the reviewer nor AOJ could find the sleep study. It will remand for non-compliance with its April 2019 directives and instructs the AOJ to select a different reviewer. Sexual dysfunction The AOJ arranged for M.H., the reviewer from the sleep apnea claim, to review the sexual dysfunction claim. She opined, in October 2020, that the Veteran's psychiatric disorder did not cause his sexual dysfunction because "psychiatric disabilities cause mental symptoms, not physical microvascular changes." She then touched upon the August 2004 treatment record cited above, but she seems to opine that it is irrelevant because the Veteran did not mention psychiatric symptoms at the medical visit at which he requested Viagra. The Board cannot discern why M.H. so opined because the Veteran's was not required to link his sexual dysfunction to his psychiatric disability in the context of a medical appointment. Moreover, M.H. failed to opine on the aggravation prong of a secondary service connection claim. As such, remand is warranted to obtain a new addendum opinion. Finally, the Board notes that it has identified VA records beginning in January 2012, e.g., a January 26, 2012 VA treatment record which says "patient requesting Viagra … aware re risks and has been using without chest pain," showing the Veteran requested, and was subsequently prescribed, Sildenafil, a generic erectile dysfunction medication. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a medical professional with appropriate expertise for the Veteran's sleep apnea claim. The reviewer MUST be different from M.H., the reviewer the AOJ used for the 2020 opinions. The new reviewer should opine whether: a) Is it at least as likely as not (50 percent probability) that the Veteran's sleep apnea began during, or was otherwise caused by, his military service? Why or why not? b) Is it at least as likely as not (50 percent probability) that the Veteran's major depressive disorder CAUSED his sleep apnea? Why or why not? c) Is it at least as likely as not (50 percent probability) that the Veteran’s major depressive disorder AGGRAVATES his sleep apnea? Why or why not? In answering these questions, the reviewer MUST accept that the Veteran has sleep apnea, as evidenced by a January 2018 sleep study that can be found in a March 5, 2018 entry in the claims file labeled "C&P Exam." In doing so, the examiner should specifically address the Veteran’s contentions that he had sleeping difficulties immediately upon return from service, as well as his assertion that fellow servicemembers commented on his loud snoring during service. The examiner should set forth all findings, along with complete rationale for the conclusions reached, in a printed report. Discussion of medical rationale should include specific information as to the medical knowledge used to render the opinion as well as how the Veteran’s particular circumstances relate to that medical knowledge. 2. Obtain an addendum medical opinion from a medical professional with appropriate expertise for the Veteran’s sexual dysfunction claim. The reviewer MUST be different from M.H., the reviewer the AOJ used for the 2020 opinion. The new reviewer should opine whether: a) Is it at least as likely as not (50 percent probability) that the Veteran’s sexual dysfunction began during, or was otherwise caused by, his military service? Why or why not? b) Is it at least as likely as not (50 percent probability) that the Veteran’s major depressive disorder CAUSED his sexual dysfunction? Why or why not? c) Is it at least as likely as not (50 percent probability) that the Veteran’s major depressive disorder AGGRAVATES his sexual dysfunction? Why or why not? In answering these questions, the examiner must specifically address the: i) August 2004 VA treatment note documenting his request for a Viagra prescription; ii) The assertions the Veteran made in his December 2007 claim; and iii) His March 2012 prescription for Sildenafil, as seen in a February 28, 2013 entry in the claims file labeled as "CAPRI" records. (Continued on the next page)   The examiner should set forth all findings, along with complete rationale for the conclusions reached, in a printed report. Discussion of medical rationale should include specific information as to the medical knowledge used to render the opinion as well as how the Veteran’s particular circumstances relate to that medical knowledge. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, Counsel 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.