Citation Nr: 21069562 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-31 864 DATE: November 18, 2021 ORDER Service connection for sleep apnea, secondary to service-connected disability, is granted. Service connection for a left knee disability is dismissed. REMANDED Service connection for erectile dysfunction, claimed as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The evidence shows that the Veteran's current sleep apnea is proximately due to his service-connected PTSD and asthma and COPD. 2. There is currently no justiciable case or controversy for active consideration by the Board on the issue of entitlement to service connection for left knee disability; service connection for left knee arthritis was granted effective December 17, 2018, in an unappealed June 2020 rating decision. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea, secondary to service-connected disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of service connection for left knee disability. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to April 1985; November 1985 to February 1989 and August 1989 to December 1997. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned Veterans Law Judge during a July 2021 hearing. A transcript of the hearing is in the Veteran's e-folder. The Board observes that following the issuance of an August 2018 supplemental statement of the case (SSOC), and after the issues on appeal were certified to the Board, additional VA CAPRI medical records were associated with the Veteran's e-folder. During his hearing, the Veteran waived initial AOJ consideration of additional evidence added to the file subsequent to the last AOJ adjudication, and VA treatment records were specifically identified in the waiver. Service Connection 1. Service connection for sleep apnea, secondary to service-connected disability, is granted. The Veteran contends that his sleep apnea is caused or aggravated by his service-connected asthma and COPD. See July 2021 hearing transcript. The Veteran is service-connected for, among other disabilities, posttraumatic stress disorder (PTSD) with panic disorder, agoraphobia and depression, and a disability identified as asthma and COPD. See July 2020 rating decision code sheet. A private December 2018 sleep clinic evaluation report and January 2019 addendum set forth the Veteran's reported medical history, reviewed sleep studies, and provided current symptoms and examination results. The private physician stated that the Veteran's sleep apnea symptoms were present while he was in the service in Desert Storm. The physician also found that the Veteran also developed PTSD during the war, and that his PTSD more likely than not had resulted in his sleep apnea. An August 2021 statement from a private neuropsychologist provides that he had reviewed the Veteran's service treatment records, E-file, sleep apnea study results and DD 214. He interviewed the Veteran in August 2021. The neuropsychologist provides the medical opinion that the Veteran's sleep apnea was more likely than not due to his service-connected PTSD and asthma and COPD. The neuropsychologist cites several studies showing a connection between COPD and sleep apnea, several studies showing a connection between asthma and sleep apnea, and several studies showing a connection between PTSD and sleep apnea. The neuropsychologist also cites articles that explain the relationship between anxiety and/or psychological trauma and sleep apnea. The neuropsychologist identifies the Veteran as a male has one predisposing factor for sleep apnea but noted that the Veteran does not have numerous other risk factors. Accordingly, as the evidence shows that the Veteran's current sleep apnea is proximately due to his service-connected PTSD and asthma and COPD, secondary service connection for sleep apnea is granted. 38 C.F.R. § 3.310. 2. Service connection for a left knee disability, prior to December 17, 2018, is dismissed for a lack of case or controversy. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, the June 2020 rating decision granted service connection for left knee degenerative arthritis, effective December 17, 2018. A June 2020 letter from VA informed the Veteran of the award and his rights to seek further review of the decision. The Veteran testified that he believed service connection for his left knee disability should have been granted earlier. However, he did not appeal the June 2020 rating decision with regard to the effective date of the award of service connection for left knee arthritis. To the extent the Veteran raises entitlement to an earlier effective date for the grant of service connection, that issue is not on appeal. The U.S. Court of Appeals for Veterans Claims has held that the Board cannot adjudicate a freestanding earlier effective date claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, there remains no case or controversy regarding this issue. As there remains no allegation of error of fact or law for appellate consideration, the appeal is dismissed. 38 U.S.C. § 7105 (d)(5). REASONS FOR REMAND Service connection for erectile dysfunction, claimed as secondary to service-connected disability, is remanded. The Board remands this issue for a VA medical opinion as to the nature and etiology of the Veteran's erectile dysfunction. During the hearing, the Veteran testified that he had been taking Prozac for service-connected PTSD and depression for probably 30 years and it caused him to have erectile dysfunction. He stated that the Physician's Desk Reference indicated a connection between erectile dysfunction and Prozac. A review of the Veteran's records reflects that he takes Prozac. See November 2016 VA PTSD examination report and December 2018 private Clinical summary Report. As there is an indication that the Veteran's erectile dysfunction is associated with treatment for a service-connected disability, a VA medical opinion is warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Since the Board is remanding this claim, the AOJ should update the Veteran's e-folder to include all outstanding VA treatment records. The matter is REMANDED for the following action: 1. Please obtain and associate with the Veteran's e-folder copies of all outstanding VA treatment records. 2. Then, after the foregoing records development is completed, please refer the claim to a clinician for an opinion as to the nature and etiology of the Veteran's erectile dysfunction. The Veteran's eFolder must be made available to and reviewed by the clinician. The Board asks the clinician to opine: (a) whether it is at least as likely as not that the Veteran's erectile dysfunction is proximately due to medication, including Prozac, used to treat a service-connected disability, including PTSD with panic disorder, agoraphobia and depression; and (b) whether it is at least as likely as not that the Veteran's erectile dysfunction is aggravated (defined as any increase in disability) by medication, including Prozac, used to treat a service-connected disability, including PTSD with panic disorder, agoraphobia and depression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The clinician should provide a complete rationale for any opinion offered. If the clinician cannot provide an opinion without resort to speculation, he or she should provide an explanation as to why this is so and identify what, if any, additional evidence would permit such an opinion to be made. A new examination (or telehealth interview, etc., if an in-person examination is not feasible) should be scheduled only if deemed necessary by the clinician. 3. Please confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation medical opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If the secondary aggravation medical opinion does not comport with this remand, obtain another medical opinion. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.