Citation Nr: 21040334 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-26 173 DATE: July 3, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED) is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's ED manifested during active duty service. CONCLUSION OF LAW The criteria for service connection for ED have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1954 to July 1957 and from December 1960 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in November 2019, at which point the Veteran's claims were denied. The Veteran appealed the Board's November 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In August 2020 the Court issued a Joint Motion for Partial Remand (JMPR) setting aside the Board's November 2019 decision and remanding the issue for further proceedings. The claims returned to the Board in February 2021 and were remanded for development consistent with the Court's JMPR. Entitlement to service connection for erectile dysfunction (ED). The Veteran asserts that his ED first manifested in November 1968, during his period of active duty service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current disability of ED that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A March 2021 VA examination shows the Veteran has a current diagnosis of ED. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor for and against the Veteran's assertion that his ED manifested in service. The evidence indicating that his ED did not manifest in service includes a March 2021 VA medical opinion, wherein a VA examiner opined that the Veteran's ED was less likely than not incurred in service. In rendering this opinion, the examiner noted the Veteran's lay assertion that his ED first manifested in 1968, but concluded that a nexus could not be established because his service treatment records are silent for complaints or a diagnosis of ED. (3/2/2021, C&P Exam, p. 3). The evidence in favor of the claim includes a June 2012 VA opinion wherein a VA examiner concluded that the Veteran's ED began in 1968. (1/31/2013, CAPRI, p. 37). In rendering this opinion, the examiner considered lay assertions from the Veteran and his wife indicating that he first experienced ED in 1968. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the June 2012 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation as to why the Veteran's ED first manifested during service. Conversely, the March 2021 Board opinion failed to duly consider the Veteran's lay statements. In this regard, the examiner suggests that the Veteran's lay assertions are not credible because there is no objective medical evidence supporting his contention. However, nothing in the regulatory or statutory provisions require both medical and competent lay evidence. Indeed, competent lay evidence can be sufficient in and of itself to substantiate a disability claim. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board thus places more probative weight on the June 2012 medical opinion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current ED arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for ED is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As previously noted, the Veteran's claim of service connection for sleep apnea was denied in a November 2019 Board decision. The Veteran appealed the decision to the Court, which found that the Board failed to provide an adequate statement of reasons or bases for its conclusion that the preponderance of the evidence is against a finding that sleep apnea is causally related directly to any aspect of service. The Court further concluded that the Board failed to secure medical opinions regarding whether the Veteran's service-connected disabilities aggravated his sleep apnea. In February 2021 the Board remanded the Veteran's claim for a medical opinion regarding whether it is at least as likely as not that sleep apnea is directly caused by the Veteran's active duty military service. The Board additionally directed the RO to request an opinion regarding whether the Veteran's sleep apnea was aggravated by his service-connected disabilities, including prostate cancer, heart disease, diabetes, neuropathy, and peripheral vascular disease. The RO complied with the Board's remand directives and in February 2021 the requested medical opinions were proffered by VA examiners. Regarding whether the Veteran's sleep apnea was directly related to his service, the examiner indicated that sleep apnea was less likely than not incurred in or caused by service as "[s]ervice records showed no complaints, diagnosis [or] treatment related to [his] current diagnosis of [o]bstructive [s]leep [a]pnea." (2/19/2021, C&P Exam, p. 3). In regard to the lay evidence provided by the Veteran, the examiner indicated that the evidence of chronicity of symptoms was subjective only and was not supported by the objective evidence. (4/22/2021, C&P Exam, p. 2). The Board finds that the February and April 2021 opinions are inadequate for evaluation purposes as the examiner failed to duly consider the Veteran's lay evidence. As previously discussed, there are no regulatory or statutory provisions that require both medical and competent lay evidence. See Buchanan, 451 F.3d at 1335. Additionally, the Board notes that in a previous VA examination, a VA examiner indicated that the Veteran's sleep apnea "is almost certainly due to his marked obesity . . .." (6/8/2015, CAPRI, p. 72). In rendering this decision, the examiner did not address evidence suggesting that the Veteran was overweight during his period of active duty service. In an August 1964 service treatment record, the Veteran was found to be overweight and was placed on a salt free diet (11/29/2010, STR, p. 138). Given these facts, the Board finds that the claims should be remanded so that a VA examiner can consider the August 1964 service treatment record in opining on whether the Veteran's sleep apnea manifested during service. Additionally, it should be considered whether any service-connected disorder caused or worsened the Veteran's obesity such as to create an intermediate step that then led to the cause or aggravation of the claimed sleep apnea. Based on the aforementioned, the Board finds that the claim must be remanded for an addendum opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from October 2016 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea is at least as likely as not related to the Veteran's period of active duty service. The examiner is reminded that nothing in the regulatory or statutory provisions require both medical and competent lay evidence, and that competent lay evidence can be sufficient in and of itself to substantiate a disability claim. (Continued on the next page) In rendering an opinion, the examiner MUST acknowledge and consider an August 1964 service treatment record indicating that the Veteran was overweight during his active duty service. Additionally, the examiner should obtain an addendum opinion regarding whether the Veteran's sleep apnea is at least as likely as not proximately due to his service-connected disabilities, or was aggravated beyond its natural progression by his service-connected disabilities. Specifically, the examiner should consider whether it is at least as likely as not that any service-connected disability, including diabetes mellitus, diabetic peripheral neuropathy of all extremities and peripheral vascular disease of the lower extremities, ischemic heart disease, or prostate cancer residuals have caused or worsened obesity and if so, whether it is at least as likely as not that the obesity in turn caused or worsened the current obstructive sleep apnea. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.