Citation Nr: 21041883 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 20-04 117 DATE: July 10, 2021 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, is denied. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected diabetes mellitus, is denied. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT 1. The preponderance of the evidence is against finding that the Veteran has erectile dysfunction due to an event, injury, or disease in service or secondary to a service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran has OSA due to an event, injury, or disease in service or secondary to a service-connected disability. 3. Throughout the appeal period, the Veteran's PTSD has manifested by no more than occupational and social impairment with reduced reliability and productivity; but was not productive of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW 1. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310. 2. The criteria for service connection for OSA are not met. 38 U.S.C. § 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.310 3. The criteria for a rating higher than 50 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from October 1965 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges the April 2021 brief submitted by the Veteran's attorney regarding the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). As noted by the Board in its March 2021 decision, the Veteran was denied entitlement to a TDIU in a January 2020 rating decision. He appealed the denial to the Board and requested to submit evidence. As that appeal was being processed under the modernized review system created by the Appeals Modernization Act (AMA), the Board declined to take jurisdiction over the issue (under legacy). Instead, the Board finds that it will be the subject of a later Board decision issued in conformity with the AMA. A review of the file shows that by an April 2021 decision, the Board denied TDIU. Following such denial, the Veteran's attorney has contended that he submitted argument prior to the April 2021 denial. Regardless, the issue of TDIU is not currently before the Board as it has separately been adjudicated under the new AMA framework. SERVICE CONNECTION 1. Entitlement to service connection for erectile dysfunction, to include as secondary service-connected diabetes mellitus; and entitlement to service connection for OSA, to include as secondary to diabetes mellitus. The Veteran has asserted his sleep issues began in service and have continued ever since, or in the alternative as secondary to his diabetes. He has also asserted his erectile dysfunction is due to his diabetes. 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 active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After having considered all of the evidence of record, the Board concludes that the preponderance of the evidence is against finding that the Veteran suffers from OSA or erectile dysfunction related to his military service- to include as secondary to his diabetes mellitus. The Veteran's service treatment records (STRs) do not contain any complaints, treatment, or diagnoses related to OSA or erectile dysfunction. The Veteran's service treatment records indicate that on discharge, he weighed approximately 174 pounds and was approximately 5'11 in height. A weight of 174 pound is within the "ideal weight" BMI range. VA treatment records show that the Veteran was diagnosed with diabetes mellitus in early 2009. See also June 2009 Rating Decision. In December 2018, the Veteran underwent an examination, and reported symptoms of sleep apnea beginning in service. He reported snoring, apneic episodes which began in service, and his wife relayed this had persisted. He was diagnosed with sleep apnea in 2007, approximately 39 years post-service. The examiner stated it was less likely than not that sleep apnea was due to service. After reviewing the Veteran's entire claims file and considering his lay reports regarding his in-service symptoms, the examiner explained that the Veteran's sleep issues in service were acute and there was no evidence of chronicity. At a December 2018 reproductive system examination, the Veteran reported reproductive system symptoms which began in 2006, approximately 38-year post-service. He reported suddenly noticing symptoms of erectile dysfunction. He was diagnosed with benign prostatic hypertrophy in 2007. The examiner indicated it was less likely than not that erectile dysfunction was related the Veteran's diabetes mellitus, as the two disabilities were wholly separate and unrelated. The examiner stated medical literature did not support a relationship between the disabilities. The Veteran submitted articles in February 2019. One article details the causes of erectile dysfunction, and the other explains the connection between restless leg syndrome and quality of sleep in type 2 diabetes. These articles are not specific to the Veteran or his unique experiences. Therefore, these articles are afforded limited to no probative value. In April 2021, following a review of the file, an addendum opinion addressing the Veteran's erectile dysfunction was provided. The examiner noted a review of the Veterans STR's and post-service treatment records, the Veteran's, and his spouse's statements. The examiner concluded erectile dysfunction is less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus. In a record from September 2006, the Veteran reported OSA, and erectile dysfunction. This is significant as records reflect the diagnosis of diabetes in 2009. Clearly, the erectile dysfunction predated the September 2006 diabetes diagnosis. The Veteran's erectile dysfunction would be best termed as organic/natural onset based on general risk factors. There is no evidence of aggravation beyond the natural course, which would tend to worsen over time. There is no evidence erectile dysfunction was aggravated beyond its natural course due to any cause, including by the Veteran's diabetes. In an April 2021 addendum opinion on the etiology of OSA, the examiner noted a review of the Veteran's STRs, post service records, and the Veterans and his spouse's statement in support. The examiner concluded OSA was less likely than not incurred in or caused by an in-service injury event or illness. There is no evidence of OSA during service. His separation examination is negative for sleep disturbances. During service, the Veteran specifically indicated that he did not have frequent trouble sleeping. He was not diagnosed with OSA until 2007. However, a note from September 2006 reports the Veteran as having OSA, which places the onset in or around 2006. Regardless, this is a space of greater than 30 years, and it is highly unlikely an individual could tolerate OSA for that duration without requiring evaluation or intervention. Furthermore, snoring, fitful sleep, movements during sleep, daytime fatigue, gasping, choking, and insomnia, are general symptoms and do not define OSA, which requires a sleep study for definitive diagnosis. The Veteran's claim, to include his wife's statements, are not substantiated by the medical evidence. The Veteran clearly noted no sleep disorder during service. His OSA is not due to diabetes nor has it been aggravated by diabetes. The mechanism of OSA is upper airway obstruction associated with apneic episodes. There is no anatomical physiologic mechanism by which the Veteran's diabetes could cause or aggravate his OSA. This includes medications used to treat diabetes. Furthermore, there is no objective evidence of aggravation of the Veteran's OSA beyond its natural course due to any cause. Although the Veteran believes he suffers from OSA and erectile dysfunction due to service, or secondary to diabetes mellitus, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board affords more probative weight to the VA examiners' opinions. As for erectile dysfunction, the Veteran was first diagnosed with erectile dysfunction in 2006 and was not diagnosed with diabetes until 2009. The 2018 examiner explained there was no aggravation of erectile dysfunction by diabetes, as the medical literature did not support a relationship between the two disabilities. The 2021 examiner pointed to the fact that erectile dysfunction was diagnosed prior to diabetes, and there was no evidence of aggravation beyond the natural course. The proposed etiology of erectile dysfunction was described as natural onset based on general risk factors. With respect to OSA, the 2018 examiner explained the Veteran's reports of in-service sleep disturbances was likely acute in nature, further there are no reports of sleep disturbances in service. The first mention of OSA is over 30 years following discharge. The 2021 examiner explained the different mechanisms that impact OSA and diabetes and explained there is no anatomical physiologic mechanism by which the Veteran's diabetes could cause or aggravate the Veteran's OSA. In so concluding, the examiners provided a detailed rationaleincluding consideration of the medical evidence and lay reports. The examiners' opinions are probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. There are no competent opinions to the contrary and in support of the Veteran's claims. The most probative evidence of record does not show that the Veteran suffered OSA directly due to service or secondary to diabetes mellitus, or from erectile dysfunction secondary to diabetes mellitus. Therefore, the claims must be denied. 2. Entitlement to a rating higher than 50 percent for PTSD. A 50-percent rating will be assigned for PTSD where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70-percent rating applies when a veteran's occupational and social impairment reflects deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. "A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. A determination as to entitlement to the 70 percent rating requires an ultimate finding as to the level of impairment in most of the areas referenced in the criteria. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran was afforded a VA examination for his PTSD in December 2018. At that time, the examiner opined that the Veteran's PTSD most nearly approximated occupational and social impairment with reduced reliability and productivity. The Veteran reported no change in his marital functioning. He reported occasionally fishing with his wife's cousin. He stated he did not like being around too many people. He is retired. Symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships. On observation, he was alert and oriented to all spheres. His thought process was linear and logical, and there was no evidence of a thought disorder. His mood was neutral with appropriate affect. His speech was normal in rhythm, rate, pitch, and volume, with no impediments noted. Memory and attention were intact. His hygiene appeared adequate and he was appropriately groomed and dressed. He reported having trouble in groups and crowds. He was found to be capable of managing his financial affairs. The Veteran's VA treatment records consistently document that he denied experiencing suicidal or homicidal ideations. See e.g. November 2020; October 2020 (Negative Suicide Screening); September 2020 (denied any homicidal or suicidal thoughts); August 2020 (Negative Suicide Screening); June 2020 (denied suicide ideas, intent, or plans. No history of suicide attempts; negative suicide screening); September 2019; August 2019; and April 2019 VA Treatment Records. The Veteran underwent an additional VA examination in April 2021. At that time, the examiner noted a diagnosis of PTSD and diagnosed major depressive disorder. The examiner indicated it is not possible to differentiate what symptoms are attributable to each diagnosis. The examiner opined that due to both acquired psychiatric disorders, the Veteran experienced occupational and social impairment with reduced reliability and productivity. He reported no significant change since his last examination. He continues to reside in Inverness with his wife of 40 years. He shared the relationship with his wife was going well, and she is the love of his life. He reported lots of friends and denied issues with social interactions. He reported ongoing issues with guilt, reporting his friend would be alive if he hadn't fixed his truck. He reported irritability, anger, and memories of Vietnam that pop up, as well as poor sleep. He was prescribed sertraline and prazosin. Symptoms include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss and disturbances of motivation and mood. He presented alert, oriented and fairly groomed. Eye contact was good, speech clear, and thoughts linear. He reported anxious mood, and his affect was full. He denied perceptual disturbance. He denied suicidal ideation, intent, or plan. There was no evidence of cognitive impairment. However, he did report difficulty with concentration and short-term memory on occasion. The examiner stated that the Veteran is able to manage his financial affairs. VA treatment records reveal at a visit in May 2018 the Veteran reported feeling better. Since starting Prazosin his nightmares had stopped and he was sleeping much better. As a result, his mood seemed to be improving. At an April 2019 visit, he denied suicidal ideation. He was cooperative, notably engaged, and present, and oriented to all spheres. His speech was normal rate and tone, and motor activity was within normal limits. Thought process was logical and goal directed. His affect was appropriate. He had no perceptual disturbances. His abstract thinking was normal. At an October 2019 visit, he denied depression or anxiety. He was oriented to time, place, situation, and his mood, and affect were appropriate for context. As noted, a rating higher than 50 percent requires a finding that the Veteran has deficiencies in most of the areas listed in the criteria for a 70 percent rating. 38 C.F.R. § 4.130. As it relates to his judgment and thinking, the Veteran was regularly described as having normal thought processes. As for memory, he was noted to have mild memory loss. His symptoms included: depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships. There are no reports of suicidal or homicidal ideation during the period on appeal. On examination in 2021, he reported difficulty with concentration and short-term memory loss on occasion. Otherwise, there has been no indication of impaired judgment, thought processes, or communication, nor has he endorsed delusions or hallucinations. Throughout the period on appeal, there has been no evidence of speech intermittently illogical or obscure, spatial disorientation, or impaired thought processes. Taking into account the type, severity, duration, and frequency of these manifestations, the Veteran did not have deficiencies in the areas of judgment and thinking that give rise to the next higher evaluation of 70 percent. As for maintaining relationships, the Veteran has been married for over 40 years, and has reported a healthy and happy relationship with his wife. He reported going fishing on occasion and having several friends. This evidence indicates the Veteran is capable of maintaining social functioning. The 50 percent rating contemplates impaired social relationships, including those with family members. There is no evidence of more severe deficiencies in this area, such that entitlement to the next higher evaluation of 70 percent would be warranted. The Veteran has been retired throughout the course of the appeal. Although there are notes that he has disturbances of motivation and mood, he has had no cognitive impairment, with the exception of reports of short-term memory disturbances on occasion. While his symptoms have impacted his employment, the probative evidence shows he retired in 2008. In evaluating the Veteran's increased rating claim, the Board is aware that the symptoms listed under the 50 and 70 percent rating are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. However, even considering his competent lay testimony, the record does not show the Veteran manifested symptoms that equal or more nearly approximate the criteria for a 70 percent rating. The Boards it highly probative that throughout the appeal period, the VA examiners did not find that the Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. Instead, the evidence shows that his PTSD has caused occupational and social impairment with reduced reliability and productivity, which is consistent with the currently assigned 50 percent rating. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 C.F.R. § 4.1. The assignment of a high disability rating of 50 percent is recognition of significant interference of the Veteran's PTSD in his employment and his social life. Therefore, the nature, frequency, duration, and severity of the Veteran's symptoms as they specifically relate to his psychiatric diagnosis warrant no more than a 50 percent schedular rating. Accordingly, entitlement to the next higher evaluation of 70 percent is not warranted. As the weight of the evidence is against a higher rating, reasonable doubt does not arise. 38 U.S.C. § 5107(b). MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.