Citation Nr: 21067112 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-08 959 DATE: November 3, 2021 REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for obstructive sleep apnea, to include as secondary to diabetes mellitus and peripheral neuropathy, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1963 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in a March 2021 decision. The Board finds that the RO has substantially complied with the March 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran was scheduled for a hearing on November 24, 2020 but did not appear. As of the date of this decision, the Veteran has not submitted good cause for his failure to appear or requested a rescheduled hearing. This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Although the Board sincerely regrets the additional delay, a remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran has other claims, including a claim for total disability for individual unemployability, pending with the Board on the AMA docket. Those claims are not addressed in this decision. 1. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that his erectile dysfunction is due to or aggravated by his service-connected diabetes mellitus. In December 2014, the VA obtained an addendum opinion regarding the relationship between the Veteran's erectile dysfunction and his diabetes mellitus. The examiner concluded that the Veteran's DM did not cause or aggravate his ED based on the history portion of the Veteran's July 2011 VA diabetes examination. The July 2011 DM examination also indicated that the Veteran had just began treatment for his ED. The Board concludes that this opinion is inadequate because it is based primarily on a brief note on a decade old examination. The Board finds that remand is necessarily in order to provide an adequate examination for the Veteran's ED. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). Entitlement to service connection for obstructive sleep apnea, to include as secondary to diabetes mellitus, peripheral neuropathy and bursitis, is remanded. In March 2021, the Board remanded the issue of service connection for OSA for opinions regarding the relationship of the Veteran's OSA to DM, bilateral lower extremity peripheral neuropathy, and right shoulder bursitis. The April 2021 VA examiner concluded that it was less likely than not that the Veteran's OSA was caused or aggravated by any of his service-connected conditions, but was, instead, likely due to his obesity. The Board also notes that the April 2021 VA examiner indicated that the medical literature does support an association between OSA and DM as people with OSA have an increased prevalence of DM. The Veteran, through his representative, has contended that the Veteran's diabetes mellitus, lower extremity neuropathy, and bursitis caused his currently diagnosed obesity due to complications of those disabilities. In turn, the representative contends that the Veteran's obesity caused or aggravated his obstructive sleep apnea. The Board notes that VA's Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. In light of above, the Board concludes that a remand is necessary to obtain nexus opinions addressing this theory of entitlement. See 38 U.S.C. § 5103A (d) (2014); 38 C.F.R. §§ 38 C.F.R. § 3.159 (c) (4); 3.310 (2018); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his erectile dysfunction. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is the erectile dysfunction at least as likely as not proximately due to the Veteran's service-connected diabetes mellitus? (b) Is the erectile dysfunction at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected diabetes mellitus or his other service-connected conditions? (c) Is erectile dysfunction at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that erectile dysfunction is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner should consider all of the evidence of record, including the Veteran's lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. The examiner is also reminded that "the permanent worsening" standard has no application in cases involving an incremental increase in disability of a non-service-connected condition proximately due to or the result of a service-connected disease or injury, but instead that it includes any incremental increase in disability resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence. 2. Obtain an addendum opinion from an appropriate medical professional regarding the Veteran's obstructive sleep apnea. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should opine as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea began during active service, is related to an incident of service, or began within one year after discharge from active service? (b.) Did the Veteran's service-connected diabetes mellitus, lower extremity neuropathy, or right shoulder bursitis cause him to become obese? (c.) If so, is the Veteran's obesity a substantial factor in causing or aggravating his sleep apnea? (d.) Would the sleep apnea have occurred or worsened but for the obesity caused by the service-connected diabetes mellitus, lower extremity neuropathy, or right shoulder bursitis? The examiner should consider all of the evidence of record, including the Veteran's lay statements and medical records. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. The examiner is also reminded that "the permanent worsening" standard has no application in cases involving an incremental increase in disability of a non-service-connected condition proximately due to or the result of a service-connected disease or injury, but instead that it includes any incremental increase in disability resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, Associate 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.