Citation Nr: 21020791 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-46 792 DATE: April 8, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED), secondary to a service-connected posttraumatic stress disorder (PTSD) disability, is GRANTED. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), insomnia, sleep disturbances, and/or fatigue is REMANDED. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s current ED was caused by the service-connected PTSD disability. CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction have been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from March 1961 to March 1964, from November 1990 to October 1991, and from February 2000 to January 2004. The Veteran’s certificates of release from active duty reveal that his multiple decorations include the Vietnam Service Medal and Southwest Asia Service Medal. In addition to the active duty service, the Veteran served in the United States Army Reserves. 1. Entitlement to service connection for erectile dysfunction (ED), secondary to a service-connected posttraumatic stress disorder (PTSD) disability, is granted. In August 2011, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated a claim for service connection for ED. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). 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 current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The 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). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In April 2017, the Veteran’s treatment records were associated with the claims file. In January 1995, the Veteran underwent a Comprehensive Clinical Evaluation. At that time, the military examiner noted a diagnosis for impotence. During a February 1995 Gulf War evaluation, the Veteran reported that he never endured impotence prior to his deployment in Operation Desert Storm. In September 2018, the Board considered the Veteran’s claim for service connection for ED. The Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. In April 2019, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured male reproductive organ conditions. The VA examiner noted a current diagnosis for ED with an unknown etiology. In June 2019, an addendum opinion was associate with the claims file. The VA examiner opined that the current ED was less likely than not (less than 50 percent probability) proximately due to, or the result of, a service-connected disability. The VA examiner supplied that following rationale: “Veteran does not have a SC condition that would result in ED.” In August 2020, the Board considered the Veteran’s claim for service connection for ED. At that time, the Board found the June 2019 VA examination report inadequate to render a disposition on the Veteran’s claim. The Board remanded the claim to the AOJ to obtain an addendum examination report, which addressed a June 1995 notation for impotence. In October 2020, the Veteran underwent a VA examination that addressed the nature and etiology of any currently endured male reproductive organ conditions. The VA examiner noted that the Veteran reported impotence in February and June 1995, and in January 1996. The VA examiner opined that, “(t)he Veteran's Impotence / erectile dysfunction and PTSD symptoms onset are overlapping and it cannot be said with > 50% confidence if the timeline supports PTSD as being the CAUSE of the Impotence.” The Board notes that the Veteran maintains a current diagnosis for ED. The Board also notes that the Veteran is service connected for PTSD. Consequently, the first and second requisite elements for secondary service connection have been substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. The Board observes that the October 2020 VA examiner opined that, “it cannot be said with > 50% confidence if the timeline supports PTSD as being the CAUSE of the Impotence.” At this time, the Board finds that the evidence stands in relative equipoise as to whether the Veteran’s current ED was caused by the service-connected PTSD disability. Consequently, the final requisite element for secondary service connection for ED has been substantiated. See id. Accordingly, this claim for service connection for ED must be granted. REASONS FOR REMAND Upon review of the record, the Board concludes that further procedural development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate procedure prior to final adjudication. 2. Entitlement to service connection for obstructive sleep apnea (OSA), insomnia, sleep disturbances, and/or fatigue is remanded. In August 2020, the Board considered the Veteran’s claim for service connection for OSA, insomnia, sleep disturbances, and/or fatigue. At that time, the Board remanded the claim to the AOJ for an addendum opinion regarding the etiology of the Veteran’s any current OSA, insomnia, sleep disturbances, and/or fatigue. In December 2020, the AOJ issued a supplemental statement of the case (SSOC). Therein, the AOJ continued to deny the Veteran’s claim for service connection for OSA, insomnia, sleep disturbances, and/or fatigue. In February and March 2021, the Veteran’s treatment records from the Olin E. Teague Vet Center were associated with the claims file. After review, the Board notes that the records contain notations that are pertinent to the Veteran’s claim for service connection for OSA. The Board observes that additional medical records have been associated with the Veteran’s electronic claims folder since the AOJ issued the SSOC on December 15, 2020. Since these records were added to the Veteran’s claims file after issuance of the SSOC, and it is clear the AOJ did not review these records, a Supplemental Statement of the Case (SSOC) must be furnished to the Veteran and his attorney. See 38 C.F.R. § 19.31. If the Board were to consider this evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would “lose one bite of the apple,” meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board concludes that the AOJ should have the opportunity to review the records from the Olin E. Teague Vet Center and issue a SSOC. See 38 C.F.R. § 19.37 (b). The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304 (c). The Veteran has not submitted a waiver of AOJ consideration of the new evidence received since issuance of the December 2020 SSOC, and the AOJ has not issued an SSOC with consideration of the newly received evidence. On remand, the agency of original jurisdiction should issue a SSOC that considers all the evidence received since the December 2020 SSOC. In reaching this conclusion, the Board observes that the Veteran filed his substantive appeal on December 23, 2015. For all substantive appeals received on or after February 2, 2013, if, either at the time or after the AOJ receives a substantive appeal, the claimant or the claimant’s representative submits evidence to either the AOJ or the Board for consideration in connection with the issues on appeal, such evidence shall be subject to initial review by the Board unless the claimant or the claimant’s representative requests in writing that the AOJ initially review such evidence. See Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). However, as this evidence does not appear to have been submitted by either the Veteran or his attorney, the claim must be remanded for the AOJ for readjudication with consideration of the newly received evidence. Consequently, the matter is REMANDED to the AOJ for the following action: 1. Readjudicate the Veteran’s claim for service connection for OSA, insomnia, sleep disturbances, and/or fatigue in light of all the additional evidence added to the record since the December 2020 SSOC. 2. If any of the benefit sought on appeal is denied, the Veteran and his attorney should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.