Citation Nr: 21070537 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-57 346 DATE: November 24, 2021 ORDER Entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence demonstrates that his erectile dysfunction is aggravated by his service-connected psychiatric disability. CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to June 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the November 2016 VA Form 9, Substantive Appeal, the Veteran declined an optional Board hearing on the matters. Additionally, the Veteran has not requested a Board hearing following the Board's July 2019 remand of the claims. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). The undersigned Veterans Law Judge has been assigned to consider these matters pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). On January 7, 2016, the Veteran signed a valid VA Form 21-22 designating the American Legion as his representative, despite attorneys CDR and JSB continuing to submit documents and submissions on the Veteran's behalf. Given the confusion in the claims file as to the Veteran's true representative, the Board mailed the Veteran correspondence on December 18, 2019 (erroneously dated December 18, 2018) seeking clarification on who represented the Veteran in the matters before the Board. The Veteran responded in January 2020 that he was unrepresented, and he would be representing himself in all matters before the Board. In July 2020, the Veteran mailed in correspondence requesting to have JG appointed as his representative. In an August 2020 letter, the Veteran was informed that his July 2020 request was invalid, as all requests for new representation must be filed on VA Forms 21-22 or 21-22a. In light of the above, the Board shall proceed with its appellate review based on the Veteran's wishes to be unrepresented. The Veteran's claims seeking entitlement to service connection for posttraumatic stress disorder (PTSD) and hypertension are awaiting the scheduling of a Travel Board hearing, and will be the result of a future Board decision, if otherwise in order. 1. Entitlement to service connection for erectile dysfunction is granted. In the July 2019 decision, the Board reopened a claim of entitlement to service connection for erectile dysfunction and remanded the matter for a VA medical opinion addressing whether this disability was proximately due to, the result of, or aggravated by the Veteran's service-connected psychiatric disability. Service connection may be considered on a secondary basis pursuant to 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between a service-connected disability or disabilities and the condition said to be proximately due to or the result of the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998); 38 C.F.R. § 3.310(a). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); see also Ward v. Wilkie, 31 Vet. App. 233 (2019); 38 C.F.R. § 3.310(b). In December 2019, a VA medical opinion was issued, and the VA examiner opined that the Veteran's service-connected psychiatric disability did not cause the Veteran's erectile dysfunction because the Veteran was diagnosed with and treated for erectile dysfunction for many years prior to his diagnosis of and treatment for his psychiatric disability. However, in Frost v. Shulkin, 29 Vet. App. 131, 136-39 (2017), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.310(a) did not contain a temporal requirement excluding secondary service connection in situations where the secondary condition was incurred prior to the grant of service connection for, or diagnosis of, the primary condition. As such, the December 2019 VA examiner's opinion addressing the causation element of a secondary service connection claim is not probative. Regarding the aggravation prong of a secondary service connection claim, the VA examiner stated that he could not opine on whether the Veteran's service-connected psychiatric disability aggravated the Veteran's erectile dysfunction without resorting to mere speculation. The VA examiner explained that the Veteran suffered from multiple conditions which may aggravate the Veteran's erectile dysfunction, to include chronic alcoholism, benign prostatic hyperplasia, being overweight, prostate medications, PTSD, mental health medications, and sleep disorders. As the December 2019 VA examiner has identified mental health medication as a possible contributor to the worsening of the Veteran's erectile dysfunction, among other factors, and the VA examiner was unable to apportion which of the listed factors most contributed to the aggravation of the Veteran's erectile dysfunction, the Board shall resolve reasonable doubt in the Veteran's favor. As such, the Board concludes that the Veteran's erectile dysfunction has been aggravated (i.e., incrementally worsened) by the medications used to treat his service-connected psychiatric disability sufficient to support an award of service connection under 38 C.F.R. § 3.310(b). Cf. Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor). To this extent, the Veteran's appeal seeking entitlement to service connection for erectile dysfunction is granted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. In the July 2019 decision, the Board reopened a claim of entitlement to service connection for obstructive sleep apnea and remanded the matter for an opinion on whether the Veteran's obstructive sleep apnea is proximately due to, the result of, or aggravated by the Veteran's service-connected psychiatric disability. In December 2019, a VA examiner issued a negative medical nexus opinion concluding that the Veteran's service-connected psychiatric disability has not caused or aggravated the Veteran's obstructive sleep apnea. Regarding causation, the VA examiner explained that the Veteran's psychiatric disability was less likely than not the cause of the Veteran's obstructive sleep apnea because obstructive sleep apnea is caused by a physiological abnormality where the muscles in the back of the throat relax causing the airway to narrow or close during breathing. The decreased availability of air results in a lower oxygen level in the blood. The brain senses the inability to breathe, and briefly rouses the affected individual from his or her sleep so that the airway can be reopened. This awakening is usually brief and results in snorting, choking, or gasping that is not remembered by the individual. The pattern repeats itself throughout sleeping, impairing the affected individual's ability to reach the deep, restful phases of sleep. The VA examiner opined that sleep apnea is associated with risk factors such as excessive weight, a thicker neck circumference, a narrowed airway, being male, being older, having a family history of the condition, smoking, nasal congestion, and the use of alcohol, sedatives, or tranquilizers. While this information is extremely helpful and informative, the VA examiner failed to address whether any of the medications used to treat the Veteran's service-connected psychiatric disability constitute as sedatives or tranquilizers, and if so, whether these medications result in the relaxation of the Veteran's throat muscles, causing or worsening his obstructive sleep apnea. This is medical question outside of the Board's fact-finding proficiency. See Colvin v Derwinski, 1 Vet. App. 171,175 (1991). The Veteran is not service-connected for alcohol use. Additionally, while the VA examiner stated that the Veteran's obstructive sleep apnea was not aggravated by his service-connected psychiatric disability, the VA examiner gave no explicit rationale for this medical opinion. This conclusory statement does not allow the Board to make a fully informed decision on the matter. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). As such, the Veteran's claim seeking entitlement to service connection for obstructive sleep apnea must be remanded for an additional VA medical opinion that fully addresses whether the Veteran's service-connected psychiatric disability has caused or aggravated the Veteran's obstructive sleep apnea. Lastly, obtain any additional VA treatment records from July 2021 to the present. 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from July 2021 to the present. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Do any of the medications used to treat the Veteran's service-connected psychiatric disability constitute as sedatives and/or tranquilizers, and if so, is it at least as likely as not (50 percent probability or greater) that these sedatives and/or tranquilizers caused or aggravated the Veteran's obstructive sleep disorder? The electronic claims file demonstrates that the Veteran's service-connected psychiatric disability has been treated with duloxetine, mirtazapine, prazosin, trazodone, and/or sertraline during the appellate period. (b.) In any other aspect, is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep disorder has been aggravated (i.e., underwent any incremental increase in disability, regardless of its permanence) by the Veteran's service-connected psychiatric disability? The VA examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience and medical expertise; established medical principles; and citation to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.