Citation Nr: 21041378 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-55 883 DATE: July 9, 2021 ORDER The petition to reopen the claim for service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected diabetes mellitus, type 2, is granted. Entitlement to service connection for erectile dysfunction (ED) as secondary to service-connected diabetes mellitus, type 2, and posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. In a May 2014 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for OSA; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the May 2014 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for OSA. 3. The Veteran's service-connected diabetes mellitus caused his OSA, with obesity as an intermediate step. 4. The Veteran's service-connected diabetes mellitus and PTSD caused his ED. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for OSA have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for obstructive sleep apnea as secondary to service-connected diabetes mellitus, type 2, have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 3. The criteria for service connection for erectile dysfunction as secondary to service-connected diabetes mellitus, type 2, and PTSD have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to October 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an August 2017 and February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned in April 2021. A transcript of that hearing has been added to the Veteran's file. 1. The petition to reopen the claim for service connection for obstructive sleep apnea is granted. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran's claim of service connection for OSA in a May 2014 rating decision, finding that there was no in-service event, injury, or disease for OSA. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The evidence received since the May 2014 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran submitted a medical opinion that addresses the relationship of his OSA to his service-connected diabetes. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. 2. Entitlement to service connection for OSA as secondary to service-connected diabetes mellitus, type 2, is granted. The Veteran asserts that his obstructive sleep apnea is secondary to his service-connected diabetes mellitus, type 2. Service connection may be established for disability that is proximately due to or aggravated by a service-connected disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. Obesity, for purposes of service connection, is not considered a disease or disability for purposes of establishing entitlement to service connection under 38 U.S.C. § 1110 and 1131, or for purposes of establishing secondary service connection under 38 C.F.R. § 3.310. Obesity, however, may qualify as an "intermediate step" between a service-connected disability and a current disability where a claimant establishes that the obesity was caused by a service-connected disability and caused his or her the current disability. G.C. Prec. Op. 1-2017. Where obesity is asserted to be an intermediate step, the evidence must show that the service-connected disability "caused the veteran to become obese," that the obesity caused by the service-connected disability "was a substantial factor in causing" the current disability, and that the current disability "would not have occurred but for" the obesity caused by the service-connected disability. Id. In Walsh v. Wilkie, 32 Vet. App. 300 (2020), the Court further held that the Board needs to consider the obesity-intermediate step theorem predicated on 3.310 (aggravation) also where appropriate. In particular, the Court held that proper interpretation of G.C. Prec. Op. 1-2017 requires consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability (caused the veteran to become obese/aggravated the veteran's obesity); (2) if so, whether the (obesity/aggravation of obesity) as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for (obesity caused/obesity aggravated) by the service-connected disability. If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In July 2017, the Veteran's VA treating physician, B.C., M.D., stated that, since being on insulin, the Veteran had gained weight and, during that time, his OSA was diagnosed. The doctor further stated that it was likely that the weight gain from the Veteran's insulin use contributed to his sleep apnea. Thereafter, the Veteran underwent a VA examination in August 2017. The doctor stated that although the Veteran's OSA could easily be tied to his weight gain, diabetes has not been shown to be independently a causative factor in the development of OSA and that it was more likely related to the Veteran's obesity. In sum, the Veteran is service connected for diabetes mellitus, type 2. He has also been diagnosed as having obstructive sleep apnea. VA doctors in July 2017 and August 2017 both concluded that the Veteran's obstructive sleep apnea was related to his weight gain and/or obesity. The July 2017 doctor also concluded that the Veteran's insulin, which was used to treat his service-connected diabetes mellitus, contributed to his weight gain. As such, the probative evidence of record supports a finding that the Veteran's service-connected diabetes mellitus caused or aggravated his obesity, which in turn caused his obstructive sleep apnea. Therefore, service connection for obstructive sleep apnea as secondary to service-connected diabetes mellitus is warranted. See 38 C.F.R. § 3.310. 3. Entitlement to service connection for erectile dysfunction as secondary to service-connected diabetes mellitus and PTSD is granted. The Veteran asserts that he suffers from ED as a result of his service-connected diabetes and PTSD, including the medications that he takes for such disabilities. In December 2017, the Veteran's VA treating physician, B.C., M.D., stated that it is more likely than not that his ED is secondary to his diabetes. The Veteran was afforded a VA examination in January 2018. The examiner opined that it is less likely than not that the Veteran's ED is proximately due to or the result of his diabetes or PTSD medications. The examiner explained that the Veteran's ED appears to have pre-existed the development of his diabetes or administration of medication for his PTSD; therefore, it is unlikely secondary to it. The examiner went on to state that even if the Veteran's ED developed after his diabetes or PTSD medications, it would not be secondary. The examiner noted that the risk of developing ED is increased from multiple pathologies, such as medication, cigarette smoking, obesity, hypertension, cardiovascular disease, depression (psychological disorders), age, and finally, diabetes. The examiner stated that the Veteran's advanced age, obesity, cigarette smoking and hypertension were well documented and that "there is no way to say with certainty that the erectile dysfunction is primarily or solely due to his diabetes or medications for this PTSD over these four other equally credible risk factors." First, the standard for establishing service connection does not require that that the Veteran's ED be related to his service-connected diabetes mellitus and/or PTSD "with certainty." Rather, the evidence need only be in a state of equipoise. See 38 U.S.C. § 5107. Further, the standard for establishing service connection does not require that his ED be attributed "primarily or solely" to his service-connected diabetes mellitus and/or PTSD, but rather that there be a link. Risk factors listed by the examiner for the development of ED included psychological disorders (i.e., PTSD), diabetes, and obesity. As noted above, the Veteran's obesity has been found to be an intermediate step between his diabetes mellitus and his now service-connected OSA, and in light of this examiner's statement may also be an intermediate step between his diabetes mellitus and his ED. Regardless, the examiner stated that both psychological disorders (i.e., PTSD) and diabetes mellitus are risk factors for the development of ED. (Continued on the next page) Thus, while the January 2018 VA examiner concluded that the Veteran's ED was not caused by medications taken to treat his PTSD and diabetes mellitus, the rationale for his opinion actually supports the Veteran's claim in that the examiner noted that risk factors for the development of ED include psychological disorders (i.e., PTSD) and diabetes mellitus, as opposed to the medications taken to treat these disabilities. As such, the probative evidence of record supports a finding that the Veteran's service-connected diabetes mellitus and PTSD caused his ED. Therefore, service connection for ED as secondary to service-connected PTSD and diabetes mellitus is warranted. See 38 C.F.R. § 3.310. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.