Citation Nr: 21032768 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-22 595 DATE: May 27, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for sleep apnea, secondary to service-connected bipolar disorder with major depression and anxiety is remanded. Entitlement to service connection for vasectomy, secondary to service-connected bipolar disorder with depression and anxiety, is remanded. Entitlement to service connection for erectile dysfunction, secondary to service-connected bipolar disorder with depression and anxiety, is remanded. FINDING OF FACT In March 2021, prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wished to withdraw his appeal with respect to the issue of entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria for withdrawal of an appeal have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to March 1994. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for PTSD, sleep apnea, and vasectomy. The Veteran disagreed with the RO's determination and a Statement of the Case was issued July 2019 addressing the matter. The Veteran timely appealed. In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Withdrawal of Appeal 1. PTSD The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal and may be made by the appellant or the appellant's authorized representative. 38 C.F.R. § 19.55(a). Unlike 38 C.F.R. § 20.204, its predecessor regulation, 38 C.F.R. § 19.55 does not have a provision explicitly providing for withdrawal of an appeal on the record at a hearing. With regard to such oral withdrawals, "withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant withdrew his or her appeal must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). In this case, at the beginning of the March 2021 Board hearing, the undersigned asked the Veteran if he understood that if he withdrew his appeal, he could later change his mind and file a new claim but that he would have to start over from the beginning and if benefits were eventually awarded, they would not be awarded as far back as they would have had he not withdrawn the appeal. Hearing Transcript, at p. 2. The Veteran indicated that he understood. Id. Thus, the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Moreover, even in the absence of explicit language allowing for withdrawal of an appeal on the record at a hearing, there is no prohibition against such withdrawal and in this case the Veteran and his representative expressed a desire to withdraw the appeal from the denial of the claim for service connection for PTSD. Dismissal of the appeal is therefore appropriate in these circumstances. REMAND 2. Sleep Apnea The Veteran contends that his sleep apnea is secondary to his service-connected bipolar disorder with major depression and anxiety. Post-service treatment records show a diagnosis of obstructive sleep apnea. At his March 2021 Board hearing, the Veteran testified that his sleep apnea is secondary to his service-connected bipolar disorder with major depression and anxiety. Specifically, he reports that the onset of his sleep apnea symptoms was during inpatient treatment for mental health in 2014, and that he snored so loud that he was given his own room. The Veteran asserted that his psychiatric medication, Quetiapine and Paroxetine, caused symptoms associated with sleep apnea, to include his weight gain. He noted that he never experienced sleep apnea symptoms until his psychiatric medication was increased. In March 2021, the Veteran's representative submitted an article discussing a correlation with sleep apnea and bipolar disorder patients. Medical literature was also submitted showing a possible link between the use of Quetiapine and sleep apnea. Side effects from the medication included increased appetite and excessive weight gain. In light of the Veteran's competent and credible statements and medical literature, the evidence indicates that the Veteran has a current disability that may be associated with a service connected disability. As the Veteran has not been afforded a VA examination in connection with this claim a remand for such an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Vasectomy The Veteran contends that his vasectomy is secondary to service-connected bipolar disorder with depression and anxiety. In support of his claim, the Veteran was afforded a VA examination in January 2018. The examiner opined that the Veteran's vasectomy was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's records were thoroughly reviewed, and there was no mention of need for vasectomy because of depression in his mental health notes or his mental health C&P exam. The examiner further explained that all the urology notes pertaining to his vasectomy indicate that it is being done for "permanent contraception". The examiner noted that nothing is mentioned about depression being a reason. Having a vasectomy, which is often permanent, is a very conscious decision. The examiner further noted that if an individual were having it done for anything but contraception or disease condition, a provider would likely not perform the procedure. The examiner concluded that the consent form is very clear on purpose of the procedure and potential complications, and there is no evidence to support that the Veteran underwent vasectomy due to his depression. The examiner, however, failed to provide a clear opinion with rationale addressing whether the Veteran's vasectomy was aggravated by his service-connected bipolar disorder with depression and anxiety. 38 C.F.R. § 3.310 (b); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In light of the above, the Board finds the examiner's opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 4. Erectile dysfunction The Board finds that the issue of secondary service connection with respect to erectile disorder and bipolar disorder with depression and anxiety has been reasonably raised by the record. Bailey v. Wilkie, 33 Vet. App. 188 (2021) (38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal). In this regard, at his March 2021 Board hearing, the Veteran testified that his erectile dysfunction is secondary to his service-connected bipolar disorder with major depression and anxiety. In March 2021, the Veteran's representative submitted medical literature showing a possible link between erectile dysfunction and the use of Quetiapine and Paroxetine psychiatric medication. Side effects from these medications included changes in sex drive or ability and decreased sexual desire or ability. As the evidence reflects that the Veteran has a disability or symptoms of disability that may be associated with a service-connected disability, remand is warranted to obtain an opinion on this question. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of his sleep disorder, to include via telehealth if warranted. The claims file must be reviewed by the clinician. The clinician should answer the following questions: Is at least as likely as not that the Veteran's sleep apnea was either (a) caused or (b) aggravated by his service-connected bipolar disorder with major depression and anxiety? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. In formulating this opinion, the clinician must address the article submitted by the Veteran's representative in March 2021 discussing an association between sleep apnea and bipolar disorder patients, and the medical literature indicating a possible link between the use of Quetiapine/Paroxetine and sleep apnea. A complete rational should accompany any opinion provided. 2. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of his erectile dysfunction and vasectomy or residuals, to include via telehealth if warranted. The claims file must be reviewed by the clinician. The clinician should answer the following questions: Is at least as likely as not that the Veteran's erectile dysfunction was either (a) caused or (b) aggravated by his service-connected bipolar disorder with major depression and anxiety? Is it at least as likely as not that the vasectomy or residuals are aggravated by service-connected bipolar disorder with major depression and anxiety? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. In formulating this opinion, the clinician must address the medical literature submitted by the Veteran's representative in March 2021 indicating a possible link between the use of Quetiapine/Paroxetine and erectile dysfunction. A complete rational should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.