Citation Nr: 21032243 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 20-21 638 DATE: May 26, 2021 ORDER The petition to reopen the previously denied claim for service connection for depression is granted. Service connection for depression is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. A December 2016 rating decision denied service connection for depression on the basis that such was unrelated to the Veteran's service. The Veteran did not appeal, nor was new and material evidence received within one year. Accordingly, that decision became final. In an October 2018 rating decision, the Regional Office (RO) reopened the claim of service connection for depression based on additional evidence submitted in support of the Veteran's claim, to include a May 2005 Consultation Report showing provisional diagnoses of dysthymia and rule out attention deficit disorder (ADD). The Board finds that this evidence was not previously of record and relates to a previously unestablished element of the claim. 2. The Veteran's depression began during active service. CONCLUSIONS OF LAW 1. The December 2016 rating decision is final. 38 U.S.C. § 7105(b), (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2020); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 2. New and material evidence has been received to reopen a claim for service connection for depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. On de novo review, the criteria for service connection for depression have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2002 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veterans Affairs (VA) RO. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Service connection for depression is granted. The Veteran asserts that his depression began during service. After a review of the file, the Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). VA has determined, and has advised the Veteran, that his service treatment records (STRs) and personnel records are missing. See November 2016 correspondence. When STRs are lost or missing, VA has a heightened duty to assist in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's competent and credible lay statements regarding a psychiatric disability in service are supported by, as well as consistent with, the findings in his claim file. A May 2005 Consultation Report, dated one month after the Veteran's service, notes a diagnosis of dysthymia and rule out ADD. Additionally, a Medication History list includes sertraline, an antidepressant, that was last filled on October 29, 2004, during the Veteran's active duty service. The Veteran has also consistently and credibly reported that he was first diagnosed with depression, and was prescribed medication to treat his depression, in 2004 while in service. In a July 2017 statement (received in May 2018), R.J.T., a senior chief hospital corpsman who served with the Veteran, stated that, in the summer of 2004, the Veteran seemed melancholy, which was not consistent with his general character; the Veteran mentioned changes in appetite, sleep patterns, sex drive, and anhedonia. He also voiced vague suicidal thoughts with no plan. R.J.T. referred the Veteran to a physician who then sent him to the Naval Medical Center in Bethesda, Maryland. R.J.T. personally drove the Veteran to this location. VA treatment records show that the Veteran has a current diagnosis of major depressive disorder (as well as mood disorder, social maladjustment, and bipolar disorder). A June 2018 VA examiner reviewed the Veteran's medical history (including his relevant social and family history), diagnosed major depressive disorder, and concluded that such diagnosis was "more likely than not connected to in-service stressors." The evidence against the claim includes an October 2018 VA examiner's opinion that the Veteran began to have problems with depression during an unstable childhood and that his pre-existing depression is less likely related to service. While the claim file certainly shows that the Veteran did not have an easy childhood, for the reasons explained below, the Board assigns no probative value to this examiner's opinion. As noted above, the Veteran's STRs are missing, including the Veteran's active duty enlistment examination report. Thus, the presumption of soundness attaches. See Doran v. Brown, 6 Vet. App. 283, 286 (1994) (where a portion of a veteran's service medical records including his or her service entrance examination report were unavailable and were presumed to have been lost in a fire, the presumption of soundness attached). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (2004). The October 2018 VA examiner failed to use the correct standard regarding the presumption of soundness and his opinion that the Veteran's psychiatric disability preexisted service is entitled to no probative weight. While the June 2018 VA examiner did not provide a rationale for her conclusion that the Veteran's major depressive disorder was more likely than not related to in-service stressors, the Board still assigns probative weight to this opinion in light of the fact that the examiner considered the Veteran's full medical history in reaching this conclusion. Additionally, based on the Veteran's current diagnosis of major depressive disorder, with an onset of 2004 which is coincidental with the Veteran's active service, and medical records showing prescriptions for psychiatric medications during service, and in light of the Board's heightened duty to consider the applicability of the benefit of the doubt rule, service connection for depression is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran claims that his erectile dysfunction, sleep apnea, and hypertension are all secondary to his (now) service-connected depression. Accordingly, opinions regarding whether the Veteran's service-connected depression caused or aggravated his erectile dysfunction, sleep apnea, and/or hypertension is required upon remand. 1. Entitlement to service connection for erectile dysfunction is remanded. The Veteran submitted a statement from R.J.T. who stated that the Veteran revealed to him changes in his sex drive during one of their conversations. During his June and October 2018 VA examinations, he reported an onset of symptoms in 2004, with an inability to orgasm with reduced penile sensitivity and inability to achieve an erection along with a pleasureless orgasm and mechanical sex with reduced libido. His condition has gotten worse and has never been the same since 2004. The October 2018 examiner noted that erectile dysfunction side effects can happen while on a trial of anti-depressant medications but that such side effects subside once medication is stopped. Otherwise, any further erectile issues are psychogenic in nature. The examiner concluded that the persistence of symptoms after stopping Zoloft indicates that the Veteran's erectile issues are not related to the medication. The Board finds this opinion inadequate as it does not address whether the Veteran's (now) service-connected depression caused or aggravated his erectile dysfunction or whether this erectile dysfunction is directly related to service. As a result, remand for a new opinion is necessary. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran submitted a July 2017 statement in support of claim from a servicemember who worked and shared barracks room with the Veteran from 2003 through 2005. He reported "frequent occasions" where he observed the Veteran snoring loudly when asleep and would sometimes wake the Veteran to make sure that he was breathing ok. It appeared to him that the Veteran did not have adequate sleep as he was tired most of the time and tended to fall asleep during meetings and trainings. He also recalled the Veteran using an inhaler to help him breathe better. In a July 2017 statement, R.J.T. reported that the Veteran revealed changes in sleep patterns to him during service. During his June 2018 VA sleep apnea examination, the Veteran reported his condition began in 2002 with "problems with blood pressure with daytime sleepiness and snoring." He was diagnosed with sleep apnea in June 2017. During his June 2018 VA mental disorders examination, he stated that he had sleep difficulties during service where he could not sleep and would get up and drive around. He believed this was related to his undiagnosed sleep apnea since he was always tired and fatigued. An October 2018 VA examiner opined it was less likely than not that the Veteran's sleep apnea was related to service because there is no documented supporting information of the sleep condition symptoms that may have begun during service to correlate to the current diagnosis of sleep apnea. Where service medical records are missing, the absence of medical corroboration may not be equated as "negative" evidence. This opinion is inadequate because it relies on the absence of evidence in STRs to dismiss the Veteran's lay reports of symptoms during or shortly after service. As a result, remand for a new opinion is necessary. 3. Entitlement to service connection for hypertension is remanded. The Veteran claims that his hypertension is aggravated by his sleep apnea. See May 2018 statement. The Veteran also reported that his hypertension symptoms began in July 2004 when a vital signs technician stated that his blood pressure was elevated; his condition has gotten progressively worse. These contentions and statements should also be addressed on remand. Additionally, an October 2018 VA hypertension examiner determined that the Veteran's hypertension was less likely incurred or caused by service since the medical record is silent about a diagnosis or treatment for hypertension during service; the examiner noted that the Veteran had "numerous follow-ups (sic) for [hypertension] after military service." Where service medical records are missing, the absence of medical corroboration may not be equated as "negative" evidence. This opinion is inadequate because it relies on the absence of evidence in STRs to dismiss the Veteran's lay reports of symptoms during or shortly after service. As a result, remand for a new opinion is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for the disabilities remaining on appeal since his discharge from service (records of which are not already associated with the claim file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation. He should also be requested to specifically identify when the disabilities on appeal were first diagnosed and the diagnosing physician and/or facility. With his cooperation (by providing releases), the AOJ should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. Obtain copies of VA treatment records from June 2018 to the present. 3. After the above development is completed, arrange for a VA examination (to include tele-health interview) of the Veteran to determine the nature and likely cause of his erectile dysfunction, sleep apnea, and hypertension. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide opinions with detailed rationale that respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction, sleep apnea, and/or hypertension was either incurred in or otherwise related to the Veteran's military service? Please explain why. (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction, sleep apnea, and/or hypertension was either caused or aggravated by the Veteran's service-connected depression, to include any medications used to treat his depression? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was either caused or aggravated by the Veteran's sleep apnea? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner may not solely rely on an absence of evidence in STRs to dismiss the Veteran's lay reports of symptoms during or shortly after service. 4. If upon completion of the above action the issues remain 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 T. Matta, 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.