Citation Nr: 21072441 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 13-11 458 DATE: December 3, 2021 ORDER The appeal of entitlement to service connection for a left knee disability is dismissed. Service connection for depressive disorder with insomnia is granted. Service connection for erectile dysfunction is granted. FINDINGS OF FACT 1. The Veteran's attorney withdrew in writing the appeal of the issue of entitlement to service connection for a left knee disability. 2. The Veteran's current depressive disorder with insomnia had its onset in service. 3. The Veteran's erectile dysfunction is at least in part the result of his depressive disorder. CONCLUSIONS OF LAW 1. The appeal of entitlement to service connection for a left knee disability must be dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for depressive disorder with insomnia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for erectile dysfunction are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to August 1978. This appeal is before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office. In February 2017, the Board denied service connection for a bilateral knee disability, an acquired psychiatric disorder, to include mood disorder, anxiety, and depression, and "low sex drive," to include erectile dysfunction claimed as due to chemical exposure. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a January 2018 Joint Motion for Partial Remand (Joint Motion). In February 2018, the Court granted the parties' motion and remanded those matters to the Board. The Board remanded those matters to the agency of original jurisdiction (AOJ) in January 2019. In April 2020, the AOJ granted service connection for right knee patellofemoral pain syndrome, but continued to deny the remaining claims. Also, in the January 2018 Joint Motion, the parties "agree[d] that the record reasonably raised the issue of entitlement to service connection for insomnia or a sleep disorder based on aggravation, which the Board did not discuss," and thus instructed the Board to "address whether service connection for insomnia or a sleep disorder is warranted, either on its own or as a component of an acquired psychiatric disorder." The Board, therefore, in its January 2019 remand, noting that a claim for insomnia or a sleep disorder had not yet been considered by the agency of original jurisdiction (AOJ), referred the claim to the AOJ for initial consideration. However, rather than properly adjudicating the claim for insomnia in the first instance, the AOJ initially adjudicated the issue in an April 2020 statement of the case, to which the Veteran responded with the May 2020 filing of a substantive appeal to the Board. See 38 C.F.R. §§ 19.20, 19.44, 19.28. Nonetheless, as indicated above and discussed below, the Board is finding that the Veteran's insomnia is a component of his psychiatric claim, and granting it as such. Therefore, any error by the AOJ in processing the Veteran's claim for insomnia is nonprejudicial. 1. The appeal of entitlement to service connection for a left knee disability is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. The Veteran's attorney, in an October 2021 statement, withdrew the appeal of the issue of entitlement to service connection for a left knee disability. Therefore, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue, the Board does not have jurisdiction to review it, and it is dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 2. Service connection for depressive disorder with insomnia is granted. Service treatment records reflect that, at the time of his examination for entry to service, the Veteran reported a history of insomnia and frequent trouble sleeping, for which he took no medication. A July 1978 service treatment note for mental health reflects the Veteran had been unable to sleep after returning from leave on June 25, and had been having nightmares of people getting injured and feeling "nervous," "uptight," and "unable to cope [with] stress," which had worsened lately. He reported family problems at the time. The provisional diagnosis was "situational reaction." At the time of his July 1978 examination for separation from service, a history of frequent trouble sleeping since childhood was noted, which had reportedly gotten worse since returning from leave in June 1978 and was treated with sleeping pills with good results. The Veteran underwent VA examinations in February 2013 and June 2015. In February 2013, the examiner diagnosed generalized anxiety disorder and cocaine abuse in remission and opined that there was "no evidence" that the Veteran's "military experience was the solitary and direct cause of his current emotional distress." In June 2015, the examiner assessed mood disorder that was less likely than not due to the Veteran's military service because the service treatment records noting anxiety did not "identify a clear source or event contributing to that anxiety." In the January 2018 Joint Motion, "[t]he parties agree[d] that neither of these examinations were adequate," as " both examiners' opinions seem[ed] to be based on a standard more stringent than 'at least as likely as not,'" citing Jones v. Shinseki, 23 Vet. App. 382, 388 (2010). Therefore, in its January 2019 remand, the Board requested a new VA examination and opinion as to whether any current psychiatric disability was related to service, to include to include the Veteran's in-service reports of insomnia and nightmares. The Veteran was given another VA examination in May 2019, at which time major depression was diagnosed, with symptoms including chronic sleep impairment. The examiner opined that the Veteran's current psychiatric disability was not related to service. According to the examiner, given that the Veteran was no longer enduring the in-service circumstances that he asserted caused his in-service symptoms, that he had reported a remission of such symptoms afterwards, and that his emphasis was on his physical complaints in the maintenance of his depression, "there is good argument that his current condition is not the same condition he had in the service." The examiner stated that, "pressed for a nexus, I would say more likely than not that his current depression is related to his multiple physical complaints for only one of which he is service-connected. Overall, then, it is less likely than not that a clear nexus exists between his current depression and the military." The May 2019 VA examiner's opinion contains the same deficiency as that identified by the January 2018 Joint Motion parties in the previous 2013 and 2015 VA examinations: in stating that it was less likely than not that a "clear" nexus existed between his current psychiatric disability and servicei.e., indicating that the examiner was opining as to whether there was a "clear" nexus, instead of just an "as likely as not" nexusthe May 2019 examiner appeared to be applying a standard more stringent than "at least as likely as not" in determining a nexus. Furthermore, in finding that the Veteran's current disability was likely related to multiple physical complaints, including one for which he is service-connected, the examiner appeared to be opining that a service-connected disability is, at least in part, a cause of his current disability. The Veteran submitted a private psychiatric evaluation and opinion from a Dr. M.L.C., dated in July 2021. Dr. M.L.C. interviewed the Veteran and reviewed the medical record, noting the Veteran's in-service reports and treatment of nightmares, trouble sleeping, nervousness, and difficulty coping with stress, and documented post-service mental health treatment beginning in September 1997 for various mood and depressive disorders and substance abuse. Dr. M.L.C. assessed major depressive disorder and opined that such disorder had its onset during service, with the Veteran first experiencing in service the depressive episodes characterizing the disorder. He explained that the service and post-service records and interview results revealed that the depressive disorder progressed as expected over time, with similar symptomatology in service and after, continuing to the present, despite some periods of apparent remission. According to Dr. M.L.C., while the Veteran did not experience any particular traumatic event in service, he did not have a trauma-based disorder; rather, the characteristic symptoms of depression and anxiety first manifested in service, as shown in service treatment records, and in the answers given by the Veteran on interview. Dr. M.L.C. further opined that, given that his service records showed insomnia increasing toward the end of service, concurrent with the onset of other psychiatric symptoms, it was more likely than not that his insomnia was part of his major depressive disorder, rather than a separate condition. Considering the totality of the evidence, and resolving reasonable doubt in his favor, the Board finds that the Veteran's current psychiatric disability, diagnosed as depressive disorder, had its onset in service. Dr. M.L.C. reviewed and discussed the evidence of record, and his opinion in favor of the Veteran's claim is reasonably consistent with the record and supported by a clear and plausible rationale. Again, there is no adequate medical opinion contradicting Dr. M.L.C.'s opinion or otherwise weighing against the Veteran's claim. Also, the weight of the evidenceincluding the May 2019 VA examination report and Dr. M.L.C.'s July 2021 opinionsuggests that the Veteran's insomnia is a manifestation or symptom of his current psychiatric disability, rather than a separate sleep disorder. Accordingly, service connection for depressive disorder with insomnia must be granted. 3. Service connection for erectile dysfunction is granted. In its February 2017 decision, the Board noted that, on November 2015 VA examination, the examiner diagnosed erectile dysfunction and opined that Citalopram, and likely other psychiatric medicines used in the past with the documented side effect of male erectile dysfunction, were the likely cause of the Veteran's erectile dysfunction. The Board, at that time, found the opinion persuasive, but denied service connection for erectile dysfunction, as it was finding "that service connection is not warranted for a psychiatric disorder," and therefore that "the related erectile dysfunction cannot be service connected secondarily." In his July 2021 private evaluation, Dr. M.L.C. discussed the Veteran's erectile dysfunction and determined that the Veteran struggled with it concomitantly with his depressive disorder, both with and without pharmacologic management. Therefore, Dr. M.L.C. concurred with the November 2015 VA examiner's conclusion that it was more likely than not that the Veteran's erectile dysfunction was causally related to his major depressive disorder. Given the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's erectile dysfunction is at least in part the result of his depressive disorder, for which service connection is being granted. Accordingly, service connection is also warranted for erectile dysfunction. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.