Citation Nr: 21057394 Decision Date: 09/15/21 Archive Date: 09/15/21 DOCKET NO. 15-39 347 DATE: September 15, 2021 ORDER Entitlement to service connection for a prostate disability, to include as an undiagnosed illness due to service in the Persian Gulf War and/or as secondary to service-connected major depressive disorder (MDD) including mediations used to treat the same, is denied. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected major depressive disorder is granted. FINDINGS OF FACT 1. The Veteran had active military service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The Veteran's prostate disability did not have its clinical onset in service and is not otherwise related to service or a service-connected disability. 3. The Veteran's obstructive sleep apnea is proximately due to service-connected MDD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a prostate disability, to include as an undiagnosed illness due to service in the Persian Gulf War and/or as secondary to service-connected MDD are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. 2. The criteria for entitlement to service connection for obstructive sleep apnea as secondary to service-connected MDD are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1988 to June 1998, including service in Southwest Asia during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. In October 2018, November 2019, September 2020, and most recently in April 2021, the Board remanded the appeal for further development. Service Connection Service connection may be established for disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For Veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War, on or after August 2, 1990, service connection may also be established under 38 U.S.C. § 1117 or 38 C.F.R. § 3.317. Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active military, naval or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 81 Fed. Reg. 71382 (Oct. 7, 2016). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for a prostate disability, to include as an undiagnosed illness due to service in the Persian Gulf War and/or as secondary to MDD including mediations used to treat the same, is denied. The Veteran asserts that his prostate disability is an undiagnosed or unexplained multi-symptom illness due to service in the Gulf War. Specifically, he maintains that his exposure to environmental toxins such as uranium, tritium, oil fires, and burn pits are responsible for his medical issues. See May 2013 and July 2015 Veteran Statements. Alternatively, the Veteran's spouse raised the issue of his prostate problems (urine flow) being related to metal clips left inside his scrotum from his in-service vasectomy. See July 2015 Veteran Statement and February 2016 Board Hearing Transcript at 27. Lastly, the medical evidence of record raises the issue of his prostate disability potentially being secondary to his service-connected MDD, to include mediations used to treat the same. As to element one of direct and secondary service connection, the Veteran has current diagnoses of benign prostatic hypertrophy and erectile dysfunction. See May 2019 and November 2020 VA examination reports. In this regard, as the Veteran's prostate disability has two clinical diagnoses with specific and clear etiologies, this disability cannot be service-connected based on an undiagnosed or unexplained multi-symptom illness theory of entitlement. 38 C.F.R. § 3.317. Regarding element two of direct service connection, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) note the Veteran's complaints groin pain and "early prostatitis," for which he underwent a vasectomy procedure in 1992. See August 1991 STRs. Moreover, his exposure to environmental toxins during the Persian Gulf War is conceded as consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, element two of direct service connection is also established. As to element two of secondary service connection, a service-connected disability, the Veteran is service-connected for multiple disabilities including MDD. Thus, element two of secondary service connection is also met. Regarding the final element of both direct and secondary service connection, nexus, the only competent opinion of record, that of the June 2021 VA examiner, is against the claim. Specifically, after a thorough review of the claims file, including the Veteran's lay statements, the examiner opined that it is less likely than not that the Veteran's benign prostatic hypertrophy and erectile dysfunction were incurred in or caused by his military service, including as a result of his vasectomy residuals, prostatitis, or presumed exposure to environmental toxins during the Persian Gulf War, and/or as secondary to service-connected MDD, including medications used to treat the same. First, as to direct service connection, the examiner stated that benign prostatic hypertrophy and erectile dysfunction are most commonly associated with age-related changes and occur in men as they age and is not associated with vasectomy residuals or an early prostatitis episode. Additionally, the examiner stated that erectile dysfunction can also be attributed to endovascular changes caused by smoking, diabetes, and hypertension. The examiner further explained that benign prostatitis hypertrophy and erectile dysfunction are also not caused by or related to Southwest Asia exposure, as both disorders have clear and specific etiologies. To this end, the examiner stated that benign hypertrophy is caused by age progression with enlargement of the prostate and erectile dysfunction is due to normal aging and endovascular changes caused by smoking, diabetes, and hypertension. Moreover, as to the proximate causation prong of secondary service connection, the examiner reasoned that there is no association of benign prostatitis hypertrophy and erectile dysfunction and MDD, including medications to treat the same, in medical literature. She again emphasized that benign prostatitis hypertrophy is most commonly associated with age related changes and occurs in men as they age, and that erectile dysfunction is due to normal aging and also endovascular changes caused by smoking, diabetes, and hypertension. Lastly, regarding the aggravation prong of secondary service connection, the examiner reasoned that there is no association of benign prostatic hypertrophy and erectile dysfunction and MDD, including medications to treat the same, in medical literature. To this end, she stated that MDD or treatment for it does not cause or exacerbate benign prostatitis hypertrophy and that in fact, prazosin can improve the symptoms of benign prostatitis hypertrophy. Further, she stated that erectile dysfunction progresses as part of its natural progression by underlying non-service-connected conditions of diabetes, smoking, and hypertension. Thus, she concluded that the Veteran's benign prostatic hypertrophy and erectile dysfunction are not related to service, including as a result of his vasectomy residuals, prostatitis, or presumed exposure to environmental toxins during the Persian Gulf War, and/or as secondary to service-connected MDD, including medications used to treat the same. This opinion is highly probative, as it is based off of a review of the Veteran's relevant medical history and is thoroughly reasoned. There is no competent evidence to the contrary. To the extent the Veteran believes that his current prostate disability is related to service, to include as a result of his vasectomy residuals, prostatitis, or presumed exposure to environmental toxins during the Persian Gulf War, and/or as secondary to service-connected MDD, including medications used to treat the same, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Accordingly, his opinion as to the etiology of his prostate disability is not competent medical evidence. Thus, for reasons outlined above, the third element of direct and secondary service connection is not established, and the claim fails on this basis alone. Thus, the preponderance of the evidence is against the claim, the benefit of the reasonable doubt rule is not for application, and entitlement to service connection for a prostate disability must be denied. See 38 § U.S.C. 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected MDD is granted. The Veteran asserts that his chronic fatigue began in service following his return from the Gulf War and that it is due to an undiagnosed or unexplained multi-symptom illness that he continues to experience post-service. See December 2012 Veteran Claim, May 2013 Veteran Statement, and February 2016 Board Hearing Transcript at 12, 19. Specifically, as noted above, he maintains that his exposure to environmental toxins such as uranium, tritium, oil fires, and burn pits are responsible for his medical issues. See May 2013 and July 2015 Veteran Statements. Alternatively, the Veteran maintains that his chronic fatigue is secondary to service-connected MDD and/or medications used to treat the same. As the discussion below is favorable regarding secondary service connection due to MDD on a proximate cause basis, no other theory of entitlement will be addressed. The Veteran has a current diagnosis of obstructive sleep apnea. See May 2019 and November 2020 VA examination reports. He is currently service-connected for multiple disabilities, including MDD. Therefore, the Board finds that the first and second elements of secondary service connection are met. The crux of the secondary service connection claim therefore rests on element three, whether there is a relationship, or nexus, between obstructive sleep apnea and MDD or any of his service-connected disabilities. The Board finds that such relationship is substantiated for reasons detailed below. The June 2021 examiner opined negatively on obstructive sleep apnea as secondary to service-connected MDD. However, the opinion was conclusory and without sufficient explanation and provided limited rationale. The Board finds this opinion to be inadequate for two reasons. First, the opinion notes that obstructive sleep apnea is not caused by or related to the Veteran's psychiatric disorder, reasoning that although some medical research suggests an increased risk of obstructive sleep apnea in patients with PTSD, no study to date has shown a direct causal relationship. The examiner does not weigh the evidence and did not address whether the increased risk at least puts the evidence of causation in equipoise. See Andrews v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1091, 2021 WL 2549071, No. 19-0352, at *18-25 (June 22, 2021). Second, in addressing the aggravation prong, the examiner stated that the Veteran uses a CPAP machine and there is no evidence of increased aggravation and that a November 2020 note by pulmonary sleep notes the Veteran is more refreshed and sleeping better with CPAP. The examiner does not explain how sleeping better with a CPAP correlates with MDD not aggravating obstructive sleep apnea and thus this reasoning is unclear. For these reasons, the February June 2021 negative nexus opinion is supported by an inadequate rationale and is therefore non-probative. The other negative VA opinions of record are also equally inadequate and non-probative. Specifically, the January 2020 VA examiner provided limited and insufficient rationale for the proximate causation prong and failed to address the aggravation prong at all. The July 2020 VA examiner imposed a temporal element between obstructive sleep apnea and psychiatric disorder, noting that his psychiatric diagnoses preceded his obstructive sleep apnea, when there is no such temporal restriction in the regulation for secondary service connection. Frost v. Shulkin, 29 Vet. App. 131 (2017). Lastly, the Veteran maintains that some questionable practices occurred during the November 2020 VA examination and insinuated that the examiner's opinion may have been based on old examinations, which he insists were incorrect. See March 2021 VA Form 21-4138. Thus, none of these medical opinions carry any probative weight. Remand is not necessary to obtain an addendum opinion, however, as there is positive evidence submitted by the Veteran in March 2021. Thus, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); See Andrews v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 1091, 2021 WL 2549071, No. 19-0352, at *23 (June 22, 2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.") Here, the May 2015 article titled "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans" suggests there is a strong association between OSA and PTSD among Persian Gulf War Veterans. Specifically, the author highlights the Berlin study which revealed that in almost 70 percent of the screened Veterans with PTSD, there were noted as high risk for obstructive sleep apnea and that PTSD symptoms increased the risk for obstructive sleep apnea, snoring, and fatigue. See Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans (2015), available at https:// pubmed.ncbi.nlm.nih.gov/25665698, pages 1-11 (last accessed September 14, 2021). To this end, the author offered several reasons for the association between the two disorders, including the shared risk factors of PTSD and obstructive sleep apnea in military population i.e. disturbed sleep in combat which can result from prolonged operations or lack of quality of sleep is a potential precursor not only to PTSD but to obstructive sleep apnea. Additionally, the author discussed the possibility that prolonged sleep deprivation along with sleep fragmentation and hyperarousal due to the physical and psychological stressors of combat contribute to the etiology of obstructive sleep apnea and separately to developing OSA and a possibility that the chronic stress from PTSD increases the likelihood of developing obstructive sleep apnea. Thus, in conclusion, the author stated that there is a strong association between obstructive sleep apnea and PTSD and that the Berlin study results show fatigue may be the primary connection between obstructive sleep apnea and PTSD symptoms in Persian Gulf War Veterans with PTSD. In sum, the evidence of record establishes that the Veteran has been diagnosed with obstructive sleep apnea and that he is service connected for a psychiatric disorder. The record contains negative nexus opinions that are non-probative due to their inadequate supporting rationales. However, remand is not necessary as the VA as the May 2015 article "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans" establishes that there is a strong association between obstructive sleep apnea and psychiatric disorders, thus establishing a causal connection between the Veteran's current disability and his service-connected disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (drawing an "inference based on the evidence" is at the heart of any adjudication). In this regard, the Board notes that the Veteran is specifically service-connected for MDD as opposed to PTSD; however, there are diagnoses of PTSD in his treatment records, the symptoms of which the Board cannot differentiate from his MDD. Moreover, the Board sees no reason why the logic of the article submitted by the Veteran would not apply to any psychiatric disorder, regardless of diagnosis, and again the Board refuses to remand only to obtain an adequate negative nexus opinion. Accordingly, all elements of secondary service connection are met, and the benefit sought on appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.