Citation Nr: 21064415 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-32 833 DATE: October 20, 2021 ORDER An effective date of August 30, 2007, but no earlier, for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for incontinence is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. A written correspondence indicating the Veteran's intent to file a claim for PTSD was received on August 30, 2007, the original claim for service connection. 2. Resolving reasonable doubt in the Veteran's favor, the most probative evidence of record demonstrates that the Veteran's incontinence is related to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 30, 2007, but no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for service connection for incontinence have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1984 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2016 by the Agency of Original Jurisdiction (AOJ). In July 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. Effective Date 1. Entitlement to an effective date earlier than September 11, 2009 for the grant of service connection for PTSD. The Veteran contends that the effective date should be assigned from the date of his original claim, August 30, 2007, the date VA received written correspondence regarding PTSD. As explained further below, the claim for entitlement to an earlier effective date is granted. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In the present case, the record shows that the Veteran submitted written correspondence of his intent to file a claim for PTSD which was received by VA on August 30, 2007. This claim was originally denied by rating action of August 2008. The Veteran timely filed his Notice of Disagreement (NOD) in May 2008 and a Statement of the Case (SOC) was issued in June 2009. The record shows the Veteran submitted a favorable statement from a licensed social worker (LCSW) dated June 2009, received on September 11, 2009. The AOJ interpreted this submission of additional evidence as a request to reopen. However, in a January 2010 rating decision, claim for PTSD was again. In lieu of a NOD, the Veteran submitted a written statement of disagreement. Thereafter, the AOJ granted service connection for PTSD with an initial evaluation of 70 percent disabling, and assigned the effective date of September 11, 2009, the date VA received his claim to reopen. As demonstrated above, the Veteran's statement indicating his intent to file a claim for PTSD was originally received on August 30, 2007. Indeed, this was denied by rating action of August 2008. However, in resolving reasonable doubt in the Veteran's favor, the Board notes that the original rating decision did not become final as the Veteran attempted to submit material evidence within a year of the original rating decision, which was interpreted as a claim to reopen. Thus, the Board observes the Veteran continued to prosecute his original claim which was ultimately granted by the January 2013 rating decision. Based on a review of the foregoing evidence and in resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran is entitled to the effective date of his original correspondence. Accordingly, an effective date of August 30, 2007, but no earlier, for the award of service connection for PTSD is granted. Service Connection 2. Entitlement to service connection for incontinence. As explained below, the Board finds service connection on a secondary basis for incontinence is warranted. 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). The record shows that following his July 2021 Board hearing, the Veteran submitted additional evidence in support of his claim which establishes service connection for incontinence on a secondary basis. Specifically, the Veteran's treating physician indicated that the Veteran "continues to have significant pain and disability from his spondylytic [sic] disease that's mostly manifested by neurological injury involving the lower back and right lower extremity and incontinence related to lumbar condition as well." See Statement from R.B., M.D. of Neurosurgical Solutions dated July 2021, received August 2021. Additionally, the Veteran presented testimony at his July 2021 Board hearing describing his observations that the medication taken for his back problems may affect his incontinence. See Hearing Transcript at 5. Taking all reports into account and resolving reasonable doubt in the Veteran's favor, the Board finds service connection for incontinence is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to service connection for erectile dysfunction is remanded. At his hearing, the Veteran asserted that his erectile dysfunction was caused by medication taken for his service-connected disabilities. See Hearing Transcript at 3. In April 2019, the Veteran was afforded a VA examination and medical opinion obtained. The VA physician rendered a negative direct service connection opinion. For secondary service connection, the VA physician indicated he "did not find evidence of a temporal relationship [the veteran's] meds and ED" and "the meds are not known to have a causative relationship." See Male Reproductive System Conditions Disability Benefits Questionnaire (DBQ) and Medical Opinion dated April 2019. Although otherwise adequate, the VA physician did not address aggravation of nonservice-connected disabilities as set out in the regulations under 38 C.F.R. § 3.310 (b). El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Thus, an addendum is necessary. 4. Entitlement to service connection for sleep apnea is remanded. The record shows a July 2016 VA examination and medical opinion where the examiner rendered a negative direct service connection opinion for sleep apnea. The examiner concluded that the "veteran's current diagnosis of obstructive sleep apnea is not caused by his Southwest Asia service." In the rationale, the examiner stated, "sleep apnea is an anatomical and mechanical disorder" and "it cannot be caused by Gulf War syndrome, or exposure to Southwest Asia service." See Sleep Apnea DBQ, Gulf War General Medical Examination, and Medical Opinion dated July 2016. The SOC issued in May 2019 considered this evidence. However, the record shows that the Veteran submitted a private sleep study and Sleep Apnea DBQ completed by a treating physician M.A., M.D., dated January 2019, received via facsimile in June 2019, which were not considered in the recent SOC issued in May 2019. Additionally, at his hearing in July 2021, the Veteran raised a secondary theory of entitlement where he reported daily use of a CPAP machine and was currently taking medication for his PTSD. See Hearing Transcript at 6. Thus, a new examination should be afforded where the examiner addresses the Veteran's contentions and takes into consideration the additional private sleep study and DBQ completed by the treating physician. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Forward the claims file to the VA physician who conducted the April 2019 VA examination for an addendum opinion on secondary aggravation. If the examiner is not available, obtain an opinion from an equally appropriate VA medical professional. After review of the claims file, the examiner is to provide an addendum opinion on the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is aggravated by his service-connected disabilities, including medication taken to treat his service-connected disabilities. A complete rationale for all findings and conclusions is requested. 2. Schedule the Veteran for a VA examination from a qualified medical professional to determine the nature and etiology of the Veteran's sleep apnea. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected disability to include medication taken for PTSD? Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated by his service-connected disability to include medication taken for PTSD? A complete rationale for all findings and conclusions is requested. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.