Citation Nr: 21061422 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-50 047A DATE: October 4, 2021 ORDER Service connection for erectile dysfunction is granted. REMANDED Service connection for residuals of peptic ulcer surgery, to include as secondary to unspecified depressive disorder, is remanded. Service connection for sleep apnea, to include as secondary to unspecified depressive disorder, is remanded. Service connection for asthma is remanded. Entitlement to TDIU is remanded. Entitlement to spec ial monthly compensation is remanded. FINDING OF FACT The Veteran's erectile dysfunction is proximately due to service-connected low back disability. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction as secondary to low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to January 1965. In November 2020, the Veteran and his wife testified at a hearing held before the undersigned Veterans Law Judge. The matter was previously remanded in February 2021. In July 2021, the RO granted service connection for unspecified depressive disorder. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 44748. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 51214 (1998). 1. Service connection for erectile dysfunction as secondary to low back disability The first element is met, in that an April 2021 VA examination indicates a current diagnosis of erectile dysfunction. For secondary service connection, the nexus element is met, in that the evidence is at least in equipoise. An April 2021 VA medical opinion concludes that the Veteran's erectile dysfunction is at least as likely as not proximately due to or the result of the Veteran's service-connected back disorder. This conclusion is based on the severity of the Veteran's back pain and medical literature indicating a nexus between back pain and sexuality. A June 2021 VA medical opinion concludes that the Veteran's erectile dysfunction is less likely than not caused by his back disorder. The rationale is that onset of erectile dysfunction was in 2000 but service connection was not established for his back disability until 2015. The same examiner concludes that the Veteran's erectile dysfunction is less likely than not aggravated by the Veteran's low back disorder. The rationale is that there is no evidence that the Veteran's erectile dysfunction worsened after service connection was established for his back disability. Both medical opinions are probative because both are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). There is no basis to ascribe greater probative value to one opinion than to the other. As the evidence is at least in equipoise, the Veteran is entitled to a favorable finding with respect to the existence of a nexus between erectile dysfunction and service-connected back disorder. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5556 (1990). Service connection is granted for erectile dysfunction. Separate VA medical opinions from April 2019 conclude that erectile dysfunction is less likely than not related to service-connected tinnitus and hearing loss. These opinions do not weigh against the existence of a nexus between erectile dysfunction and service-connected back disorder. As such, they do not impact the above disposition regarding service connection. REASONS FOR REMAND 1. Service connection for residuals of peptic ulcer surgery, to include as secondary to unspecified depressive disorder, is remanded. An April 2021 VA examiner concludes that the Veteran's peptic ulcer disease is less likely than not related to service. The rationale is that the Veteran's service treatment records are silent for this disorder and he was not operated on until 1990. In the November 2020 hearing transcript, the Veteran argues that his peptic ulcer disease is the result of in-service stress. His wife indicates that he has had stomach problems since leaving service. The April 2021 VA medical opinion does not address the hearing testimony regarding the impact of stress and stomach problems on the Veteran's residuals of peptic ulcer surgery. In addition, the examiner must comment on the lay report as to the onset of the Veteran's gastrointestinal problems. An addendum opinion is required. 2. Service connection for sleep apnea, to include as secondary to unspecified depressive disorder, is remanded. An April 2021 VA examiner concludes that the Veteran's sleep apnea is less likely than not related to service. The rationale is that the Veteran's service treatment records are silent for this disorder and he was not diagnosed with this disorder until 2019. The May 2021 VA mental disorders examination states that the "[a]ggregate of above [symptoms] plus experiences in Military cause anger, lack of sleep, and depression." In light of this finding, an addendum opinion is required to address entitlement to sleep apnea as secondary to service-connected unspecified depressive disorder. 3. Service connection for asthma is remanded. An April 2021 VA examiner concludes that the Veteran's asthma is less likely than not related to service. The rationale is that the Veteran's service treatment records are silent for this disorder and he was not diagnosed with this disorder until 2010. This opinion does not address the Veteran's testimony that in-service exposure to fumes on air bases caused his asthma. An addendum opinion is required. 4. Entitlement to TDIU is remanded. 5. Entitlement to special monthly compensation is remanded. The Veteran's SMC and TDIU claims are inextricably intertwined with the claims remanded for further development. Accordingly, they must be considered together, and thus a decision by the Board on these claims would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Additionally, on remand the RO should obtain all relevant VA treatment records dated from June 2021 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from June 2021 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his disorders and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: (a.) Whether it is at least as likely as not that any current or previously-diagnosed residuals of peptic ulcer surgery was incurred in the Veteran's service, including but not limited to as a result of in-service stress. (b.) Whether the Veteran has any current or previously-diagnosed residuals of peptic ulcer surgery that is proximately due to the Veteran's service-connected unspecified depressive disorder. (c.) Whether the Veteran has any current or previously-diagnosed residuals of peptic ulcer surgery that was aggravated by the Veteran's service-connected unspecified depressive disorder. In rendering these opinions, the examiner should consider the Veteran's hearing testimony about in-service stress and that he has experienced stomach problems since service. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: (a.) Whether it is at least as likely as not that any current or previously-diagnosed sleep apnea was incurred in the Veteran's service. (b.) Whether the Veteran has any current or previously-diagnosed sleep apnea that is proximately due to the Veteran's service-connected unspecified depressive disorder. (c.) Whether the Veteran has any current or previously-diagnosed sleep apnea that was aggravated by the Veteran's service-connected unspecified depressive disorder. In rendering these opinions, the examiner should consider the findings of the May 2021 VA mental disorders examination. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 5. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinion: Whether it is at least as likely as not that any current or previously-diagnosed asthma was incurred in the Veteran's service. In rendering this opinion, the examiner should address the Veteran's hearing testimony that in-service exposure to fumes on air bases caused his asthma. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 6. Send the Veteran a letter which provides proper and complete notice regarding the criteria necessary to substantiate a claim for TDIU. Also send the Veteran a VA Form 21-8940 with instructions for completion, and then complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational history, occupational history, and wages received. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.