Citation Nr: 21073876 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-37 697 DATE: December 13, 2021 ORDER Entitlement to service connection for erectile dysfunction as secondary to prostate cancer is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating in excess of 50 percent for PTSD is remanded. FINDING OF FACT The Veteran's erectile dysfunction is proximately due to his service-connected prostate cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction as secondary to prostate cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 1966 to May 1969 with honorable service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in October 2021. A transcript of the proceeding has been associated with the claims file. Subsequent to the June 2018 statement of the case, additional VA treatment records, private treatment records, and VA examinations were associated with the claims file. The Board finds that the evidence is new and pertinent, and must be referred to the Agency of Original Jurisdiction for review before the Board can consider the evidence in the first instance. 38 C.F.R. § 20.1305 (c). However, as for the claim of service connection for erectile dysfunction, the Board finds that a remand is unnecessary and may proceed with the adjudication of the claim without any prejudice to the Veteran given the favorable finding below. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to service connection for erectile dysfunction as secondary to prostate cancer The Veteran contends that his diagnosis of erectile dysfunction is either attributable to his medication for his service-connected PTSD or his treatment for his prostate cancer. Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the Veteran is service connected for both PTSD and prostate cancer. The Veteran's VA treatment records indicate a diagnosis of erectile dysfunction. The Veteran was afforded a VA examination in January 2018. The examiner confirmed the Veteran's diagnosis of erectile dysfunction but opined that it is less likely than not proximately due to his prostate cancer. The rationale provided was that medical literature does not support a relationship. Additionally, the examiner noted that erectile dysfunction can occur after prostate cancer and treatment, but in the Veteran's case, he had symptoms prior to his diagnosis of prostate cancer, and there is no subjective or objective evidence of medical or surgical treatment for the condition. The Board finds this opinion to be inadequate, as the examiner's opinion was not based on an accurate interpretation of the facts of record. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Veteran provided private treatment records showing a January 2017 entry for erectile dysfunction after completion of radiation therapy. The Veteran was prescribed medication, and it was noted that he did not have complications from penile injection therapy. In November 2019, the Veteran was afforded a VA examination for his prostate cancer. The examiner noted the Veteran's diagnosis of erectile dysfunction and opined that it is at least as likely as not related to the radiation treatment for his prostate cancer. Another VA examination was completed in April 2021 for the Veteran's prostate cancer. The examiner again opined that the Veteran's erectile dysfunction is at least as likely as not related to his treatment for prostate cancer. After careful consideration, the Board finds that the preponderance of the evidence supports a finding that he is diagnosed with erectile dysfunction that is at least as likely as not proximately due to or the result of his service-connected prostate cancer. Although the January 2018 VA examiner opined that the erectile dysfunction was less likely than not related to his prostate cancer, the Board finds the opinion inadequate. Consequently, the Board affords more probative weight to the remaining evidence of record, to include the November 2019 and April 2021 positive nexus opinions. Accordingly, entitlement to service connection for erectile dysfunction as secondary to prostate cancer is granted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is 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. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to service connection for sleep apnea, to include as secondary to PTSD is remanded. The Veteran contends that his sleep apnea is attributable to his service-connected PTSD. Alternatively, the record demonstrates that the Veteran has complained of problems with sleeping since he returned from Vietnam. See January 2018 Medical Treatment Record. The Veteran was afforded a VA examination for his sleep apnea claim in January 2018. The examiner opined that there was no evidence of a diagnosis of sleep apnea because a sleep study is not documented. Additionally, the examiner opined that the Veteran's sleep apnea is less likely than not due to his PTSD because medical literature does not support a medical relationship between the two claims. The Board finds that the January 2018 VA opinion is wholly inadequate for several reasons. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). First, the Veteran's VA treatment records include a June 2009 cardiopulmonary diagnostic sleep study which diagnosed the Veteran with mild obstructive asleep apnea. His VA treatment records also note ongoing use of a CPAP machine for his sleep apnea. The examiner did not consider this sleep study when rendering their opinion. Second, the rationale offered by the examiner is conclusory, as the examiner stated that if the Veteran was diagnosed with sleep apnea, it would not be related to his PTSD because medical literature does not support a relationship between the two conditions. The examiner failed to offer a rationale with specifics related to the Veteran and the facts of his case. Third, the VA examiner did not provide an opinion as to aggravation, which is required for secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Finally, the VA examiner did not provide an opinion as to whether the Veteran's sleep apnea is related directly to his service, as the evidence suggests that the Veteran has suffered sleep problems since his service in Vietnam. Specifically, in an April 2005 statement in support of claim, the Veteran stated that after returning from Vietnam, he had periods where he was very tired and found it difficult to sleep. He also contended that he experienced muscle spasms in his legs when sleeping. The Veteran's post-service medical records include complaints of sleep problems beginning in June 1994 and continued until his June 2009 diagnosis of sleep apnea. Based on the above, the Board finds that a remand is necessary for an adequate VA examination that considers whether the Veteran's June 2009 diagnosis of sleep apnea is at least as likely as not directly related to his service, proximately due to or the result of his service-connected PTSD or aggravated beyond natural progression by his service-connected PTSD. 2. Entitlement to an increased rating in excess of 50 percent for PTSD is remanded. In November 2018, the Veteran provided a psychological evaluation completed by Dr. E.C. and Dr. J.D. suggesting that his service-connected PTSD has worsened since his May 2018 VA examination possibly entitling him to an increased rating. The Board notes that VA's duty to assist requires VA to provide a contemporaneous medical examination when the Veteran asserts or the evidence indicates that the disability has worsened since the last VA examination or the record does not adequately reveal the current state of the disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the Board finds that a remand is necessary for a contemporaneous VA examination. Additionally, during the October 2021 Board hearing, the Veteran testified that he sees a VA psychiatrist every 6 months for his PTSD. Thus, the Board finds that updated VA treatment records should be added to the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the Present. 2. After the above-referenced development is completed, schedule the Veteran for a VA examination with an appropriate clinician for his obstructive sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is Veteran's sleep apnea at least as likely as not related to his service? When rendering an opinion, the examiner is asked to consider the Veteran's April 2005 statement in support of claim that he started to experience problems with his sleep after Vietnam, and he experienced fatigue and leg muscle spasms. The examiner should also consider the Veteran's documented problems with sleep beginning in June 1994 and continuing until his June 2009 sleep study. (b) Is the Veteran's sleep apnea at least as likely as not proximately due to his service-connected PTSD? (c) Is the Veteran's sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD? Any opinions expressed should be accompanied by a complete rationale. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. The examiner is also asked to consider and comment on the findings in the November 2018 psychological evaluation completed by Dr. E.C. and Dr. J.D. 4. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.