Citation Nr: 21005841 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-26 173 DATE: February 2, 2021 REMANDED 1. Entitlement to service connection for sleep apnea is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty as a radioman in the U.S. Navy from April 1954 to July 1957 and from December 1960 to December 1969 including service in the Republic of Vietnam with additional service in the Naval Reserve until retirement from service in October 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied the service connection claim for sleep apnea and erectile dysfunction which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court issued an order that vacated the Board decision on those two issues and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). Entitlement to service connection for sleep apnea In November 2019 the Board issued a decision denying the Veteran’s sleep apnea. In July 2020 CAVC issued a JMPR in which it found that further analysis was required regarding the direct service connection, as the Veteran has reported continuity of sleep apnea since the late 1960s to early 1970s, with a diagnosis in 2002. See July 2020 CAVC Decision, p. 5, see also December 2010 VA 21-4138 Statement in Support of Claim. Further examination and opinion is also required to address whether the Veteran’s current sleep apnea was aggravated by service-connected disabilities including prostate cancer, heart disease, diabetes and associated neuropathies, and peripheral vascular disease. In the present case, the Veteran has been diagnosed with obstructive sleep apnea. Sleep apnea is not a "chronic disease" under 38 C.F.R. § 3.309(a) (2016); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The question is thus whether there is an in-service incurrence or aggravation of sleep apnea, and if so, whether there is 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. A review of the record does not show any complaint, treatment or diagnosis for sleep apnea or for trouble sleeping in service. To the contrary, the Veteran’s March 1969 report of medical examination did not diagnose sleep apnea or a sleep condition. See November 2010 STR-Medical, p 7. Furthermore, in the Veteran’s January 1970 report of medical history, he denied having frequent trouble sleeping and did not claim any symptoms related to sleep apnea. Id at 55. However, the Veteran has asserted that he has had continuity of symptoms from service to present. See October 2019 Appellate Brief, p. 3. In the present case, the Board finds that a remand is necessary for adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006) sets a low bar to afford an examination for a claimed service-connected condition. Given that the Veteran is not competent to provide a nexus opinion and because the November 2012 VA examination only included a nexus opinion regarding secondary service connection, the Board finds that a remand is necessary. See June 2015 CAPRI, p. 71. Entitlement to service connection for erectile dysfunction In November 2019 the Board issued a decision denying the Veteran’s erectile dysfunction. In July 2020 CAVC issued a JMPR in which it stated that a “remand is warranted for the Board to address the credibility and competency of lay statements regarding the onset of Appellant’s” erectile dysfunction. Further examination and opinion is also required to address whether the Veteran’s current erectile dysfunction was aggravated by service-connected disabilities including prostate cancer, heart disease, diabetes and associated neuropathies, and peripheral vascular disease. In the present case, the Veteran’s service treatment records (STRs) are silent as towards any complaint, treatment or diagnosis for erectile dysfunction, to include the Veteran’s March 1969 Report of Medical examination and the Veteran’s January 1970 report of medical history. See November 2010 STR-Medical, pp. 7, 55. In October 2010 the Veteran submitted a claim of service connection for erectile dysfunction. In November 2010 the Veteran, and his wife, each wrote to VA, stating that the Veteran’s erectile dysfunction began in 1968, a year before he separated from active military service. See December 2010 VA 21-4138. In the present case, the Board finds that a remand is necessary for adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), sets a low bar to afford an examination for a claimed service-connected condition. Given that the Veteran is not competent to provide a nexus opinion on the etiology of his erectile dysfunction and because the November 2012 VA examination only included a nexus opinion regarding secondary service connection, a remand is necessary. See June 2015 CAPRI, p. 71. The matters are REMANDED for the following actions: 1. Obtain a supplementary medical opinion from an appropriate medical examiner regarding the nature and etiology of the Veteran’s current sleep apnea and erectile dysfunction. The examiner should be provided access to the Veteran’s claims file, and the examiner should indicate review of those materials in the opinion report. If deemed necessary, provide the Veteran with an in-person examination. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed sleep apnea or erectile dysfunction are directly caused by the Veteran’s active duty military service. The examiner is also asked to provide an opinion whether the Veteran’s current sleep apnea and erectile dysfunction were aggravated by service-connected disabilities including prostate cancer, heart disease, diabetes and associated neuropathies, and peripheral vascular disease. The examiner must consider all relevant lay and medical evidence, including the Veteran’s assertions of his sleep apnea beginning in the late 1960’s to early 1970s and the assertions of the Veteran and his spouse that his erectile dysfunction began in 1968. (continued next page) 2. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should indicate if the inability to provide an opinion was due to the limits of the examiner’s knowledge, the limits of medical knowledge in general, or if there was additional evidence that, if obtained, would permit the opinion to be provided. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.