Citation Nr: 21069578 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-03 312 DATE: November 18, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED), claimed as a penile condition, to include as secondary to service-connected genital herpes simplex and/or medications for service-connected disabilities is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT The preponderance of the evidence of record is against finding that the Veteran has ED at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW The criteria for entitlement to service connection for erectile dysfunction (ED), claimed as a penile condition, to include as secondary to service-connected genital herpes simplex and/or medications for service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from August 1967 to June 1970, with service in Vietnam. In September 2019, the Board remanded the above issues for additional development. Primarily, the Board remanded the above issues to obtain additional VA opinions regarding the nature and etiology of the Veteran's OSA and ED. These opinions were obtained in January 2020. Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for ED, claimed as a penile condition, to include as secondary to service-connected genital herpes simplex and/or medications for service-connected disabilities is denied. Here, the Veteran contends that his ED was caused by his medication for his service-connected disabilities and/or his service-connected genital herpes simplex. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of ED and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA examiners in April 2016, with an opinion provided in December 2016, and January 2020 concluded that the Veteran did not have a diagnosis of ED, and the Veteran's treatment records do not contain a diagnosis of ED. In an April 2016 VA examination, the examiner noted that the Veteran reported he had a diagnosis of ED with onset in 2010. The Veteran reported that he noticed the inability to maintain an erection after using his prescribed PTSD medications. Specifically, in the April 2016 VA examination, the Veteran reported losing interest in sex and could not maintain an erection. The Veteran reported that his medications were adjusted, but he was still unable to maintain an erection to complete a sex act, although he does have erections in the morning upon awakening. However, in the December 2016 VA medical opinion, the VA physician disagreed with the ED diagnosis noted in April 2016 because the physician stated that the diagnosis was based on the Veteran's self-report and not based on medical evidence. In January 2020, the VA examiner found that a diagnosis of ED was not warranted. The examiner noted that the Veteran denied any issues with ED. The VA examiner concluded that since the Veteran denied any issues with ED and no diagnosis was warranted, the Veteran's claimed ED was less likely than not (less than 50 percent probability) proximately due to, the result of, or aggravated beyond its natural progression by the Veteran's service-connected PTSD. Therefore, the examiner concluded that there was no diagnosis of ED. The Board finds the April 2016, December 2016, and January 2020 VA examinations and opinions, taken together, probative, as they are based on an examination of the Veteran, a review of the medical evidence of record, and takes into account the Veteran's lay statements. Further, despite treatment from January 2006 to the present, VA treatment records do not contain a diagnosis of ED. In fact, in several of his VA evaluations, the Veteran was noted to have decrease in his libido but is able to have a normal erection. See, e.g., July 2013 VA primary care physician note and January 2013 VA primary care visit. While the Veteran believes he has a current diagnosis of ED, and he is competent to report observable symptoms such as his ability to maintain an erection, the Board finds his lay statements less probative than the medical evidence of record. Further, the Board finds his lay statements inconsistent regarding his ability to achieve erection. Therefore, weighing the evidence, the Board finds that the most probative evidence of record fails to establish a diagnosis of ED at any time during the appeal period. Lacking a diagnosis of ED, service connection for ED is not warranted. See Brammer v. Derwinski, 3 Vet. App. at 223 (holding that a current disability is a cornerstone of service connection). REASONS FOR REMAND 1. Entitlement to service connection for OSA, to include as secondary to service-connected PTSD is remanded. The Veteran contends that his OSA is secondary to his service-connected PTSD. At the outset, the Board notes that the Veteran has a 2009 diagnosis of OSA. See January 2020 VA examination; see also November 2015 VA examination. In the November 2015 VA examination, the VA physician opined that the Veteran's OSA is less likely than not proximately due to or the result of the Veteran's PTSD. The VA physician reasoned that PTSD does not cause obstructive sleep apnea because sleep apnea is due to intermittent narrowing the airway during sleep and there is no medical connection between a mental health condition and the anatomic narrowing the of the airway during sleep. In January 2020, the VA examiner opined that the Veteran's OSA is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's OSA. The examiner reasoned that his OSA cannot be clearly linked to his PTSD as there is insufficient medical records to support such nexus. The examiner noted that his medical records do not support complaints of sleep apnea in service nor on his exit examination. The examiner noted that the diagnosis of sleep apnea was made greater than one year after leaving service. The January 2020 VA examiner also concluded that the Veteran's OSA was less likely than not aggravated beyond its natural progression by his service-connected PTSD. The examiner reasoned that the Veteran's OSA cannot be shown to be aggravated beyond its natural progression by Veteran's PTSD, as there are no STRs or medical records which support such a nexus. The examiner reasoned that his medical records do not support complaints of sleep apnea in service nor on his exit examination. The Board finds the January 2020 opinion inadequate, as the VA examiner primarily cites a lack of evidence in the Veteran's STRs for reaching his conclusions. A lack of evidence in the STRs is insufficient rationale to support a negative nexus opinion. The mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358. In addition, in July 2020, the Veteran submitted evidence of parts of articles that discussed the relationship between PTSD and sleep apnea. Specifically, the Veteran cited articles indicating that Veterans with PTSD are at higher risk for developing sleep problems and a higher risk of sleep apnea. This evidence was not of record at the time the January 2020 VA examiner provided the opinion. While the Board regrets the additional delay, this evidence must be addressed before the Board adjudicates the claim. Therefore, given the above, a remand is necessary to obtain another VA opinion that addresses the etiology of the Veteran's OSA, particularly the evidence the Veteran submitted in July 2020. The matter is REMANDED for the following action: 1. SLEEP APNEA: Obtain an addendum opinion on the Veteran's obstructive sleep apnea. The VA examiner must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiners. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner should address the following: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is proximately due to or the result of the Veteran's service-connected PTSD. b. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is aggravated by his service-connected PTSD. The examiner is requested to address the evidence submitted by the Veteran in July 2020 indicating that Veterans with PTSD are at higher risk for developing sleep problems and a higher risk of sleep apnea. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. The examiner is also reminded that a lack of evidence in the service treatment records is insufficient rationale to support a negative nexus opinion. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." 2. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.