Citation Nr: 21074217 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-40 159 DATE: December 14, 2021 REMANDED Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1999 to September 2000. This matter came before the Board of Veterans Appeals (Board) on appeal from February 2017 and June 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A June 2019 Board decision denied the Veteran's claims for service connection for right ear hearing loss, hypertension, and diabetes mellitus, but remanded all other issues on appeal for the issuance of a statement of the case and further development. In October 2020, the Board denied the issues of increased ratings and earlier effective dates for his back disability, left ear hearing loss disability, and tinnitus, while remanding the issues of TDIU and service connection for a headache disability, ED, and OSA for further development. An August 2021 rating decision granted service connection for migraines and TDIU for the entire period on appeal. As this constitutes a full grant of the issues on appeal, they therefore not before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board notes that the Veteran has a pending increased rating appeal regarding his service-connected generalized anxiety disorder with panic attacks and filed a March 2021 notice of disagreement in the modernized review system. It will therefore not be addressed in this Legacy system appeal but will be adjudicated in a separate decision. 1. Entitlement to service connection for an ED disability An October 2020 Board decision requested a new etiology opinion for ED. A new opinion was provided in January 2021, finding that the condition was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner opined that the Veteran's ED was more likely due to the Veteran's nonservice connected diabetes mellitus. However, the examiner did not provide any rationale for this finding. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion is also silent as to the aggravation of the Veteran's ED by his other service-connected disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The opinion is therefore inadequate and remand for a new opinion is required. The Board also notes that the October 2020 VA examination's medical history notations included lay statements from the Veteran in which he asserted that he began experiencing intermittent ED in 2000 while stationed in Alaska. Such statements cannot be disregarded merely because they are not accompanied by medical evidence and should be specifically addressed in the nexus opinion on remand. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 2. Entitlement to service connection for an OSA disability An October 2020 Board decision requested a new etiology opinion for the Veteran's OSA. A new opinion was provided in January 2021, with addendum opinions provided in July 2021 and August 2021 to clarify the examiner's findings. The January 2021 opinion first found that the Veteran's OSA was more likely than not "due to spinal injuries", rather than his other service-connected disabilities. However, the examiner did not provide any rationale for this finding and a July 2021 addendum opinion was therefore acquired. The examiner provided two medical articles to support the link between spinal injuries and sleep apnea. However, the same examiner then provided an additional addendum opinion in August 2021 in which he stated that July 2021 response was "made in error" and there was no medical literature to support a finding that back injuries cause OSA. The Board finds that the January 2021 opinion, to include its addendums, is inadequate for multiple reasons. First, the Board finds that the January 2021 opinion lacks adequate rationale to support its findings. As noted above, the January 2021 opinion did not provide any rationale that the Veteran's OSA was more likely than not due to spinal injuries. The addendum opinions do not provide any further clarification, but rather stand in direct conflict. The July 2021 addendum appears to provide medical support for the original finding, but the August 2021 addendum states that no such medical support exists. The examiner did not explain the deficiency in the articles he cited only a month prior. The addendums therefore lack a clear rationale due to their internal inconsistencies and the opinion, taken as a whole, is inadequate. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Second, the January 2021 opinion and its addendums are silent as to the aggravation of the Veteran's OSA by his back disability or other service-connected disabilities. Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). As the examiner did not address the issue of aggravation of the Veteran's OSA in the January 2021 opinion or its addendums, the opinion is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Third, the Board finds that the January 2021 opinion and its addendums apply the incorrect legal standard. In the August 2021 addendum, the examiner found that he could only speculate as to the cause of the Veteran's OSA due to the lack of medical literature proving a causal link. This appears to require something akin to medical certainty to show a nexus between the Veteran's OSA disability and his service-connected disabilities, to include his back disability. The adjudication standard of "as likely as not" does not require a determination that something is medically or scientifically certain. See Hodges v. Sec'y of Dep't of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). By requiring medical literature proving a connection between OSA and back disabilities prior to rendering any nexus opinion, the examiner applied a heightened adjudication standard, rather than the "as likely as not" standard. The January 2021 opinion and its supporting addendums therefore apply the incorrect legal standard and are inadequate. The December 2020 Board decision requested an opinion on obesity as an intermediate step. Service connection on a secondary basis may be granted when (1) the service-connected disability caused the Veteran to become obese, (2) obesity was a substantial factor in causing a subsequent disability, and (3) the subsequent disability would not have occurred but for obesity. See VAOPGCPREC 1-2017 (Jan. 6, 2017). The January 2021 examiner found that the Veteran's back disability aggravated but did not directly cause his obesity, that obesity was likely a substantial cause of OSA, and that the Veteran would not have OSA if he were not obese. However, the examiner provided only general information regarding the possible causes and risk factors of OSA as rationale for his opinions. He did not discuss the specific risk factors and causes in the Veteran's case. Providing a generic definition of sleep apnea does not indicate whether the Veteran's OSA is related to his obesity, and at best only supports a causal relationship between obesity and OSA in general. Although a cause may not be common, the examiner must look at the issue as it relates to this individual case. The examiner's lack of a specific rationale would require the Board to rely on its own medical opinion as to whether the Veteran's OSA could be related to his service-connected back disability, obesity, or any other disability. The Board is not permitted to do so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). For this reason, the Board finds that remand is necessary to clarify the specific link between the Veteran's OSA, back disability, and obesity. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a different clinician than the one who rendered the January 2021 VA examination to determine the etiology of any current ED disability. The examiner should review the file and provide a complete rationale for all opinions expressed. (a) For any current ED disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. (b) If the examiner finds that the current ED disability is not related to the Veteran's active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is caused or aggravated by the Veteran's other service-connected disabilities. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 2. Schedule the Veteran for an examination by a different clinician than the one who rendered the January 2021 VA examination to determine the nature and etiology of the Veteran's sleep apnea disability. (a) For any current sleep apnea disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. (b) If the examiner finds that the current sleep apnea disability is not related to the Veteran's active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is caused or aggravated by the Veteran's other service-connected disabilities. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. (c) If the examiner finds that the current sleep apnea disability is not related to the Veteran's active service or other service-connected disabilities, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea disability was caused by weight gain. If the provider finds that the Veteran's sleep apnea disability was caused by weight gain, please address whether weight gain was due to any service-connected disability. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.