Citation Nr: 22016388 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-16 376 DATE: March 22, 2022 ORDER Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is granted. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected disabilities is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran had physical presence in the Republic of Vietnam during the Vietnam Era. 2. Resolving all doubt in the Veteran's favor, hypertension is due to in-service herbicide agent exposure. 3. The Veteran's erectile dysfunction is proximately due to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). 2. The criteria for service connection for erectile dysfunction, to include as secondary to service connected disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to August 1969, with additional periods of service in the Air National Guard. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). October 2019 and September 2021 Board decisions remanded the issues on appeal for further development. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). When the evidence is in approximate balance in the veteran's favor or nearly equal 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). 1. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure The Veteran contends that his hypertension is related to active service. Granting the benefit of the doubt to the Veteran, the Board concludes that hypertension is at least as likely as not due to the Veteran's presumed herbicide agent exposure in Vietnam and that service connection is therefore warranted. The Veteran had service in the Republic of Vietnam; herbicide exposure is therefore presumed. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran has been diagnosed with hypertension. Hypertension is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the Veteran may still be entitled to service connection on a direct basis if the evidence establishes that hypertension is related to herbicide agent exposure. The Board notes that the July 2009 and December 2016 opinions regarding hypertension were already found inadequate in the October 2019 Board decision. In addition, the September 2021 Board decision found that the December 2019 private opinion and November 2020 VA opinion were also insufficient as they had a conclusory rationale and relied on an inaccurate fact, respectively. As these opinions have been found inadequate by prior Board decisions they will not be considered here. The Board notes that in its 2018 Update the National Academy of Sciences (NAS) indicated that there is "sufficient" evidence of an association between hypertension and herbicide agent exposure. The NAS therefore upgraded hypertension from its prior classification in the "limited or suggestive" evidence category to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See National Academy of Science, Veterans and Agent Orange: Update 11 (2018), http://nationalacademies.org/hmd/ reports/2018/veterans-and-agent-orange-update-2018.aspx (last visited March 1, 2019). An October 2021 VA examination diagnosed hypertension but found it was not likely due to herbicide agent exposure. As a rationale, the examiner noted that the Veteran was clearly exposed to high levels of Agent Orange while in service and noted the 2018 NAS Update. However, the examiner then stated that as hypertension was not an accepted presumptive condition, it was less likely due to herbicide agent exposure. A medical nexus opinion, as this one, that finds no nexus to service because the disability is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board therefore assigns it no probative weight. There is no other competent evidence of record addressing the relationship between the Veteran's hypertension and his herbicide agent exposure. Moreover, hypertension has not been related to any other risk factors. While the NAS evidence does not provide for a definitive association between herbicides and hypertension, it does provide positive evidence regarding said association. When there is a reasonable doubt, such shall be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, and mindful of the laws and regulations, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.303. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected disabilities The Veteran contends that his service-connected hypertension caused his erectile dysfunction. Service connection for hypertension has been granted above. The Board concludes that the Veteran has a current diagnosis of erectile dysfunction that was proximately due to his service-connected hypertension. Service connection is therefore warranted. 38 C.F.R. § 3.310. The December 2016 VA opinion regarding erectile dysfunction was found inadequate in the October 2019 Board decision and will therefore not be addressed herein. A November 2020 VA examination diagnosed erectile dysfunction. Regarding etiology, the examiner found that it was due to multiple factors and listed hypertension among the causes. The Board finds that the examination is adequate for appellate review. There is no evidence that the examiner was not competent or credible. The report is based on the Veteran's statements, in-person examinations and the examiners' observations and the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). The Board therefore finds that the competent medical evidence of record indicates that the Veteran's erectile dysfunction was caused by his service-connected hypertension and that service connection is therefore warranted. REASONS FOR REMAND 3. Entitlement to service connection for sleep apnea, to include as secondary to service connected posttraumatic stress disorder (PTSD) The September 2021 Board decision requested a new VA opinion regarding the etiology of the Veteran's sleep apnea, specifically asking that the examiner address whether it was caused or aggravated by the Veteran's service connected PTSD, to include the medication taken to treat that condition. A VA examination was provided in October 2021, and the examiner provided an opinion which found the Veteran's sleep apnea was not caused or aggravated by the Veteran's PTSD, to include his medications. The opinion has a detailed rationale addressing various issues of causation and aggravation, including the lay evidence of record and medical treatises submitted by the Veteran, however that rationale is silent for any discussion of the Veteran's PTSD medication. The opinion as it relates to the question of the Veteran's medication is therefore conclusory and lacks an adequate rationale. As a result, the record does not contain the required opinion regarding the impact of the Veteran's PTSD medication on his sleep apnea. Remand is therefore required to obtain an addendum opinion addressing this question. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's sleep apnea from an appropriate provider. The provider should review the file and provide a complete rationale for all opinions expressed. The provider should discuss whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated by the medication taken to treat his service-connected PTSD. Regarding aggravation, the opinion should discuss whether the Veteran's sleep apnea was as likely as not worsened beyond its natural progression by the medication taken to treat PTSD. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. (Continued on next page) 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.