Citation Nr: 21041760 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-58 893 DATE: July 10, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is denied. Entitlement to service connection for erectile dysfunction (ED) is denied. FINDINGS OF FACT 1. The Veteran's OSA is not secondary to the Veteran's service-connected migraines, back, and foot disabilities, and is not otherwise related to an in-service injury or disease. 2. The Veteran's ED is not secondary to the Veteran's service-connected anxiety with depression and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA due to service-connected migraines, back, and foot disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for ED due to service or service-connected anxiety and depression are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from October 1995 to September 2009. This case comes before the Board of Veterans' Appeals (Board) on an appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a Board videoconference hearing in February 2021, and a copy of the hearing transcript has been obtained and associated with the record. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 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, 1167 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to 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. 1. Entitlement to service connection for obstructive sleep apnea. The Veteran seeks service connection for his OSA. He originally claimed in his July 2017 Fully Developed Claim that his OSA was secondary to his depression, anxiety, and depression medications. However, in his June 2018 Notice of Disagreement, he amended his contention to say his OSA was secondary to his service-connected migraine headaches, back, and foot disabilities. Specifically, the Veteran contends that his service-connected disabilities have prevented him from losing weight, and that his weight gain has caused his OSA, with his anxiety and depression aggravating the condition further. The Veteran testified that his weight gain was due to his back and migraines, saying it was hard to exercise properly, and that when he was diagnosed with OSA, he was told it was due to his weight gain. He said that he did not have sleep issues prior to his back and foot conditions, and that his weight started fluctuating when he got out of service. The Veteran has not contended, and the evidence does not support, a finding that the Veteran's OSA is related directly to service. Obesity is not a disability for purposes of VA benefits, and it cannot be service connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1-2017 (Jan. 6, 2017). A grant is warranted (1) if the service-connected disability caused the Veteran to become obese; (2) if obesity was a substantial factor in causing a subsequent disability; and (3) if the subsequent disability would not have occurred but for obesity. See also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causation or aggravation basis). The Veteran's service treatment records, including his August 2009 separation examination, are silent for any complaints, treatments or diagnoses of sleep apnea or its symptoms. The Veteran underwent a telephonic VA examination for his OSA in August 2017. The examiner confirmed the diagnosis for OSA, and that he uses a continuous positive airway pressure (CPAP) machine. She determined the Veteran's OSA was less likely than not proximately due to or the result of the Veteran's service-connected anxiety with depression. She explained that OSA and anxiety with depression are two separate conditions that do not correlate, where OSA is caused by the blockage of the airway and anxiety can cause a serious night without sleep. The examiner also opined that since the Veteran's OSA was not caused by his anxiety with depression, it therefore, was not aggravated by this condition either. In July 2018, an addendum opinion about the Veteran's OSA was provided to address his claim that his weight gain, due to his service-connected back, migraine headaches, and foot disabilities, caused his OSA. The examiner determined that his OSA was less likely than not proximately due to or the result of the Veteran's service-connected conditions. She opined that although weight gain is a significant risk factor for OSA, according to a March 2018 Nutrition Assessment, the Veteran walks for an hour 3-4 times a week either on a treadmill or on trails near his home, and as for his nutrition, he noted he had cut back on his portion sizes considerably, cut out sodas, and had not been snacking or eating fried foods. At the time of this assessment, the Veteran's BMI was 36, and the nutritionist discussed weight loss strategies, appropriate/inappropriate eating behaviors with emphasis on portion control, food selection, meal frequency/consistency, and appropriate carbohydrate distribution. She concluded that the Veteran's back, migraine headaches, and foot conditions do not impact his activities and ability to exercise, and that they were not likely what impacted his becoming obese. Instead, she determined that it was more likely his poor food choices, eating behaviors, lack of portion control over the years are what caused his weight gain. The Veteran testified that he is unable to properly exercise due to his back, migraine headaches, and foot disabilities. However, he discusses working out and exercising multiple times throughout the record. In April 2012 when he was suffering groin pain, he told the doctor he was concerned he had given himself a hernia while working out. Again, in April 2013, the Veteran told the doctor about using an exercise bike and working out. In a June 2016 pharmacy consult, he discussed working out and trying to exercise. In a February 2017 primary care note, the Veteran said he and his wife recently joined a gym and he was doing cardio and light resistance training five times a week. The Veteran did say he was still exercising on the regular in an April 2017 primary care note, but that his feet were killing him. However, in a May 2014 primary care note, he reported focusing on going to the gym. Then, in March 2018, the Veteran told the doctor that he had been going to the gym to exercise, and that he had been walking a trail around his house twice weekly, but that his back did limit his activity. Later, in a May 2018 primary care note, the Veteran stated that despite his changed eating and social habits, and increased exercise intake, he was still gaining weight. And finally, in a July 2020 nutrition dietetics note, the Veteran reported walking 3.5 miles in the morning, and doing resistance bands in the afternoon 4-5 days weekly. The Veteran testified that he believes his OSA may have been caused or aggravated by his service-connected disabilities. While he is competent to report symptomatology as it comes through his senses, he is not shown to have the expertise needed to provide an opinion on a complex medical question such as the etiology of his OSA. The VA examiner provided a clear opinion with a thorough rationale based on an accurate review of the medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board affords great probative weight to the VA examiners' opinions. Consequently, the Board gives more probative weight to the medical evidence. Specifically, the examiner's opinion that the Veteran's obesity was caused by his eating habits and not an inability to workout due to his service-connected migraine headaches, back, and foot disabilities. Throughout the record, the Veteran has demonstrated he has been able to work out and exercise, admittedly modifying for his disabilities, but that he has been consistently able to exercise. Therefore, because the Veteran's service-connected disabilities are not shown to have caused his obesity, the Veteran does not meet the first requirement for establishing obesity as an intermediate step between his service-connected disabilities and his OSA. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran's OSA is secondary to his service-connected migraine headaches, back, and foot disabilities. In light of the foregoing, service connection for OSA as secondary to his migraine headaches, back, and foot disabilities, with obesity as an intermediate step, or as secondary to his anxiety with depression, is not allowed. The benefit of the doubt rule is inapplicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for erectile dysfunction. The Veteran seeks service connection for his ED. He contends that his ED is caused by his service-connected depressive disorder and anxiety, more specifically, the medications he takes for his depressive disorder. He claims that he never had a problem with ED before taking medication for depression and anxiety, and that his BMI currently was below 32, yet he was still experiencing problems. I. Secondary Service Connection The Veteran's wife provided a statement saying that over the last few months, things with her husband had changed. Her opinion is that it started after he got help for his depression. She said she believes his medications are causing his ED, and that she knows for a fact that it did not start until he started taking his medications. In January 2017, the Veteran reported during a mental health note that he had a decrease in sexual desire and that he had his first experience of ED. He told the doctor that he was concerned his ED was a side effect of the medication or combination of medications that he was taking. Later the same month, during another mental health visit, the psychologist noted that the Veteran appeared very anxiously focused on his sexual performance, and opined that it was very likely contributing to his ED. In a February 2017 mental health note, it was noted that the Veteran reported his ED problems had significant improvement. The doctor noted the discussion of the role of anxiety in sexual response reportedly helped, and that attempts at intercourse since had been successful. In a February 2017 mental health note, the Veteran discussed that before he got help for his mental health issues, his wife suggested that she may leave him, and that at the height of his depression, he was feeling angry, withdrawn, uncaring, with little energy, and had stopped confiding in his wife. He said that he had no sex drive during the time he was most depressed, and that prior to treatment, his wife would emphasize their lack of intimacy. He said that since his depression has improved, his libido is back, but his sexual functioning had been impaired for a few months. In August 2017, the Veteran underwent a VA examination for his ED. The examiner confirmed the Veteran's diagnosis for ED and that it began in 2016. The Veteran reported that his anxiety with depression was diagnosed at the end of 2016 as well. The Veteran was prescribed sildenafil for his ED issues. The examiner opined that the Veteran's ED was less likely than not proximately due to or the result of the Veteran's service-connected anxiety with depression. She concluded that the Veteran has risk factors that could be contributing to his ED. She listed risk factors of ED including medications (selective serotonin reuptake inhibitors (SSRIs)), depression, other sexual dysfunction (fear of humiliation), testosterone deficiency, and obesity. She said that when obese men with ED experience weight loss and increased physical activity, it is associated with an improvement in erectile function in about one-third of patients. She pointed out that the Veteran's BMI was 32 and that his testosterone level was 142, which could be contributing factors to his ED. Concluding, it was less likely than not that his ED was proximately caused by his anxiety with depression. She was unable to establish a baseline of severity but determined that it was less likely than not that his ED was aggravated beyond its natural progression by his anxiety and depression. In October 2017, the Veteran's record was reviewed, and an addendum opinion was provided. The same opinion was associated with the record on October 21 and October 28. The examiner opined that the Veteran's ED was less likely than not proximately due to or the result of the Veteran's service-connected anxiety with depression. She referenced the same medical sources she referenced in her August 2017 opinion laying out the numerous risk factors associated with ED, pointing out that OSA is also a risk factor for ED, independent of confounders such as obesity. She concluded that it is less likely than not that the Veteran's ED is just caused by his anxiety with depression or the medication he is on for anxiety with depression; his ED is attributed to his multiple risk factors. She was not able to determine a baseline of severity for his claimed ED, but she opined that since the Veteran was using sildenafil for ED, it indicates that the medication is working and that this condition is not aggravated beyond its natural progression. She concluded that since the Veteran had several risk factors for ED, including a BMI of 32, OSA, and a testosterone level of 142, that his ED was less likely than not proximately due to or the result of anxiety with depression and medications, and it is not aggravated beyond its natural progression since the Veteran is currently using sildenafil. Pursuant to an RO request for a clarification of the October 21 and 28, 2017 medical opinions, in December 2017, another review of the Veterans file was conducted, and an addendum opinion was provided. The examiner opined that based on the medical evidence, it was less likely as not that the Veteran's ED is secondary or aggravated beyond natural progression by his service-connected anxiety or medication taken to treat his service-connected condition. She said that the Veteran's ED is more likely due to his major depression episode that started around 2015/2016 timeframe (not due to his anxiety with depression), coupled with his hypogonadism, obesity, and OSA. She said that given his mental health notes, it shows that he was suffering from major depression a while before seeking help, and that it was less likely that the Veteran could have had an active sex life during his major depression episode where he said he could not get out of bed. This all occurred long before he was put on bupropion in October 2016. The doctor also indicated that the Veteran was found to have a low level of testosterone in August 2017, and that it was more likely that his level of testosterone had been low long before August 2017. Despite not being able to determine a baseline of severity of the Veteran's ED, she concluded that due to the Veteran's organic conditions, to include hypogonadism, obesity, and OSA, the Veteran's ED will continue to progress, and therefore, his ED is less likely aggravated beyond the natural progression by his service-connected anxiety with depression. While the Veteran and his wife are competent to relay symptoms observable to a lay person, the Board need not find a Veteran or buddy statement competent to render opinions regarding the etiology of a medical condition (such as erectile dysfunction) that requires specialized medical knowledge to diagnose. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Veteran and his wife have not shown that they possess the requisite medical training, expertise, or credentials needed to render a diagnosis or competent opinion as to medical causation of the Veteran's ED. Accordingly, this lay evidence does not constitute competent evidence and lacks probative value. The Board finds the VA examinations to be highly probative as they considered all the pertinent evidence of record and provided rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners' use of the Veteran's history to form their opinions, was well reasoned and supported by rationale. See Nieves-Rodriguez, supra. II. Direct Service Connection The Veteran also claims that he had a vasectomy in service, which may have contributed to his current condition. The Veteran testified that once he got out of service, he had swelling in his testicles that he believed was due to his August 2006 vasectomy. He continued by testifying that his primary care doctor told him he was diagnosed with ED because of the medication and the vasectomy he had in service. The Veteran's service treatment records are silent for any complaints, treatments, or diagnosis of any ED issues or symptoms. The Veteran did have a vasectomy in August 2006. The Veteran's separation examination in August 2009 does not contain any complaints or diagnoses of any genitourinary issues. In an April 2012 telephone encounter note, the Veteran complained of groin swelling and a dull pain and tenderness. The nurse determined that he had epididymitis and needed to seek medical care withing 12-24 hours. In a primary care note later the same month, the Veteran presented with having pain in his right testicle, and he noticed a lump. However, neither of these encounters detailed any complaints or symptoms of ED. Again, in a February 2013 progress note, the Veteran detailed pain in his right testicle, but denied swelling. He stated that he also had pain after having intercourse but did not indicate he was having any ED concerns or symptoms. The nurse listed epididymitis as the system concern. The Veteran reported his first problem with ED happened in 2016, around 10 years after his vasectomy in 2006, and 7 years after service. The Veteran testified that he believes his vasectomy and his later testicular swelling contributed to his current ED. However, there is no evidence that the Veteran suffered ED symptoms in 2012 and 2013 when he was being seen for the swelling and pain in his groin. For an opinion to be required there must be some competent medical or lay evidence suggesting a nexus to service may exist. Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). Nothing in the medical record or other lay evidence suggests that the Veteran's ED may have developed during service or was present in 2012 or 2013 when he was being seen for epididymitis. As to the lay evidence, the Veteran's only specific allegation is that he testified he believes his testicular swelling was possibly related to his current ED. The Board concludes that the criteria of 38 C.F.R. § 3.159 (c) to obtain a medical examination or opinion for direct service connection are not satisfied, and that direct service connection is not warranted. Accordingly, as the preponderance of the evidence is against the award of service connection on a secondary or direct basis, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, the claim for service connection for ED must be denied. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.