Citation Nr: A23035432 Decision Date: 12/12/23 Archive Date: 12/12/23 DOCKET NO. 200417-82334 DATE: December 12, 2023 ORDER Entitlement to service connection for irritable bowel syndrome (IBS) as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to service-connected PTSD is granted. Entitlement to an initial compensable disability rating for service-connected erectile dysfunction (ED) is denied. REMANDED Entitlement to service connection for a disability manifested by fatigue, to include chronic fatigue syndrome (CFS), is remanded. FINDINGS OF FACT 1. The probative evidence of record shows that the Veteran's IBS was caused by his service-connected PTSD. 2. The probative evidence of record shows that the Veteran's OSA was caused by his service-connected PTSD. 3. The Veteran's service-connected ED is not manifested by deformity of the penis. CONCLUSIONS OF LAW 1. The criteria to establish service connection for irritable bowel syndrome as secondary to service-connected posttraumatic stress disorder are met. 38 U.S.C. §§ 1110; 1117; 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria to establish service connection for obstructive sleep apnea as secondary to service-connected posttraumatic stress disorder are met. 38 U.S.C. §§ 1110; 1117; 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 3. The criteria for an initial compensable disability rating for service-connected erectile dysfunction are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Codes (DCs) 7599-7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to August 2009 and had service in the Southwest Asia theater during the Persian Gulf War. He was awarded the Combat Action Ribbon. See 38 U.S.C. § 1154(b). These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2019 and January 2020 rating decisions of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran timely filed a VA Form 10182 (Notice of Disagreement (NOD)) with those decisions in April 2020. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.203. In the Veteran's NOD, the Veteran selected the Evidence Submission option. Therefore, the Board may only consider the evidence of record at the time of the AOJ decisions on appeal, respectively, as well as any evidence submitted by the Veteran or his representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of service connection for a disability manifested by fatigue, to include chronic fatigue syndrome, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or if it is aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The question for the Board under this alternative approach is whether a veteran's claimed current disability is etiologically related to, or aggravated by, a service-connected disability. Additionally, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis and organic diseases of the nervous system, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a compensable degree within one year of the date of discharge from service. 38 C.F.R. §§ 3.307, 3.309. The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. See Jones v. Principi, 16 Vet. App. 219, 225 (2002). The Board is required to consider all pertinent medical and lay evidence when evaluating a claim for disability benefits. 38 U.S.C. § 1154(a); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (holding that the Board must assess the competence and credibility of the evidence). Competent lay evidence is any kind of evidence that does not require that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See Washington, 19 Vet. App. at 368. Lay evidence may be competent evidence to establish a diagnosis in some cases. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); 38 C.F.R. § 3.159(a)(1). It may also include sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. Id. A medical opinion is adequate if it is based upon consideration of the veteran's prior medical history and describes the veteran's condition in sufficient detail to allow the Board to make a fully informed evaluation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). This requires the opinion to "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, when the evidence persuasively favors one side or the other, the evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). 1. Entitlement to service connection for irritable bowel syndrome as secondary to service-connected PTSD The Veteran contends that his IBS is secondary to his service-connected PTSD. As a matter of law, the Board is bound by the favorable findings reached by the AOJ in its rating decisions. See 38 U.S.C. § 5104(b)(4); 5104A; 38 C.F.R. § 20.801(a). Here, the AOJ's favorable findings include that: (i) the Veteran has a current diagnosis of IBS); and (ii) the Veteran's IBS may be presumptively linked to his military service. See January 2020 Rating Decision. Therefore, the first element to establish service connection on a secondary basis is satisfied. The record shows that the Veteran is service connected for PTSD and alcohol use disorder with traumatic brain injury (TBI). Therefore, the second element to establish service connection is satisfied. Thus, the question presently before the Board is whether the evidence of record shows that the Veteran's IBS is proximately caused or proximately aggravated by his service-connected PTSD. In January 2020, the Veteran was afforded an Intestinal Conditions Disability Benefits Questionnaire (DBQ). The examiner opined that, "[t]he IBS is frequently the result of stress, anxiety, and trauma history (PTSD). The diarrhea component can be triggered with exposure to infectious bacteria and becomes chronic if not treated correctly." In support of this opinion, the examiner provided the following rationale: [t]he majority of individuals with IBS suffered from moderate-severe depression (73%), and 17.3% had severe depression (95% CI, 7.3-35.5). More claimants with IBS than without reported taking a prescription or herbal antidepressant (13.5% vs. 8.3%). Although less common than depression, 51% of individuals with IBS had some anxiety which is substantially higher than individuals without IBS (34.1%). IBS has a negative impact on every domain of QOL as measured by the SF-36. Table 3 shows the results of a multivariable regression model. Female gender, age > 40, higher educational attainment and divorce were independently associated with IBS. Those with IBS were 4.5 times more likely to suffer from PTSD. IBS is clearly a very heterogenous disease by symptom presentation and numerous mechanisms have been offered to explain its etiology. Current evidence from both basic and clinical science supports the role of infectious disease as a potential etiology and a unifying explanation of the multifaceted nature of the disease. See January 2020 Intestinal Conditions DBQ; January 2020 Medical Opinion DBQ. In April 2020, VA received a private medical opinion from a medical professional with HealthCare Partners Medical Group, dated, December 18, 2018. The private opinion asserts, in relevant part: [i]t is my professional opinion, the Veteran's current diagnosis is more likely than not a direct result of his service-connected condition of anxiety and PTSD. It is well known that the symptoms of IBS can be exacerbated by psychological stress such as those that might result from anxiety and PTSD. See December 2018, Private Medical Opinion. Although the January 2020 medical opinion does not expressly link the Veteran's IBS with his service-connected PTSD, the Board finds that the opinion provides medical evidence that indicates that IBS is causally related to and impacted by PTSD and associated symptoms of PTSD. Further, the VA examiner specifically noted that the December 2018, Private Medical Opinion was reviewed. Notably, the examiner did not challenge the opinion asserted therein. Thus, the Board finds that the January 2020 medical opinion is competent and credible as the examiner reviewed the Veteran's claims file, including the private medical opinion and provided ample evidence to support a nexus between IBS and PTSD. Accordingly, the Board affords high probative value to the January 2020 medical opinion. Similarly, the December 2018 private medical opinion is competent, as it represents the conclusion of a medical professional specializing in gastroenterology since 2006. Further, the private opinion is highly credible as it is based on an in personal examination of the Veteran, a review of his medical history and lab findings, and it is supported by an explanation that enables the Board to make a fully informed decision on the claim. Accordingly, the Board affords high probative value to the private medical opinion. As discussed above, the December 2018, Private Medical Opinion clearly asserts that there is a relationship between PTSD and IBS. Moreover, the private examiner opined that the Veteran's IBS is "more likely than not a direct result of" the Veteran's service-connected PTSD. Further, the Board finds it probative that the January 2020 medical opinion does not contradict the private opinion, to the contrary it supports it. Collectively, the two probative medical opinions indicate that it is more likely than not that the Veteran's IBS is due to his service-connected PTSD. Therefore, the Board finds that the elements to establish service connection for the Veteran's IBS as secondary to his service-connected PTSD are satisfied. Accordingly, the Veteran's claim is granted. 2. Entitlement to service connection for obstructive sleep apnea (OSA) to include as secondary to the service-connected PTSD. The Veteran contends that his OSA is secondary to the service-connected PTSD with obesity as an "intermediate step." In the December 2019 rating decision, the AOJ made the favorable finding that the Veteran has a current diagnosis of OSA. See December 2019 Rating Decision. As discussed above, such findings are binding on the Board. 38 U.S.C. § 5104(b)(4); 5104A; 38 C.F.R. §§ 3.104(c), 20.801(a). Thus, the first element to establish service connection is satisfied. As discussed above, the Veteran is service connected for PTSD and alcohol use disorder with TBI. Thus, the second element to establish service connection on a secondary basis is satisfied. Thus, the question presently before the Board is whether the evidence of record shows that the Veteran's OSA is proximately caused or aggravated by his service-connected PTSD and alcohol use disorder with TBI. In a December 2019 Medical Opinion DBQ, the examiner opined that: The claimed condition of sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition of PTSD. Veteran has had significant weight gain and history of alcohol usage which have contributed to the development of Sleep Apnea. See December 2019 Medical Opinion DBQ. Here, the Board notes that although the December 2019 examiner opined that the Veteran's OSA is "less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition of PTSD," the examiner also opined that the Veteran's "significant weight gain and history of alcohol usage" have contributed to development of the Veteran's OSA. Further, in a December 2019 Review PTSD DBQ, the examiner opined that: [the] Veteran is also diagnosed with Alcohol Use Disorder, Moderate. He consumes a moderate amount of alcohol and has difficulty controlling it. There is a clinical association between the veteran's trauma history and drinking behavior. It is likely that he consumes alcohol in efforts to decrease anxiety, mood symptoms, and manage painful memories associated with trauma. The anxiety symptoms are subsumed by the PTSD diagnosis. See December 2019 Review PTSD DBQ. As the examiner asserts, the Veteran's alcohol use disorder is associated with his PTSD as the Veteran has been found to consume alcohol, which he has difficulty controlling, "in efforts to decrease" the symptoms associated with his PTSD, to include anxiety. The examiner also noted that the Veteran's anxiety is a symptom "subsumed by the PTSD diagnosis. Therefore, as the December 2019 Medical Opinion DBQ regarding the etiology of the OSA expressly asserts that the Veteran's weight gain and alcohol use contributed to the development of his OSA, the Board finds that the evidence shows that the Veteran's OSA is due to his service-connected PTSD. Thus, the Board finds that the elements to establish service connection for the Veteran's OSA as secondary to his service-connected PTSD and alcohol use disorder with TBI are satisfied. Accordingly, the Veteran's claim is granted. 3. Entitlement to an initial compensable disability rating for service-connected erectile dysfunction. The Veteran seeks an increased disability rating for his service-connected ED. The Board notes that the Veteran also receives SMC(k) disability compensation for loss of use of a creative organ. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). The Veteran's erectile dysfunction has been analogously evaluated as noncompensable under DC 7599-7522. See December 2019 Rating Decision. Under 38 C.F.R. § 4.115(b), DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent evaluation. In Williams v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that "deformity" under DC 7522 means "a distortion of the penis, either internal or external." 30 Vet. App. 134, 138 (2018). Erectile dysfunction, without deformity of the penis, is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating have not been met. 38 C.F.R. § 4.31. Under DC 7521, a 20 percent rating is warranted for removal of the glans of the penis. Under DC 7520, a 30 percent disability rating if there is removal of half or more of the penis. Turning to the evidence of record, in December 2019, the Veteran was afforded a Male Reproductive System Conditions DBQ. The examiner noted a diagnosis of ED as of 2019. The Veteran reported that he was seen by VA and prescribed Sildenafil. The Veteran reported that the condition has stayed the same. The Veteran reported that he has problems with obtaining and maintaining an erection. The examiner noted that the Veteran's penis was not examined per the Veteran's request, and that the Veteran reports normal anatomy with no penile deformity or abnormality. The Veteran's epididymis was also not examined per the Veteran's request, and that the Veteran reports normal anatomy with no deformity or abnormality. A review of the evidence reveals that the Veteran does not have a deformity of the penis, removal of glans of the penis, or removal of more than half of the penis. See December 2019 Male Reproductive System Conditions DBQ. As such, a compensable rating for ED is not shown during the period of appeal. Again, the Board notes that the Veteran is in receipt of SMC(k) for loss of use of a creative organ for his ED for the period on appeal. Thus, the Veteran's ED symptoms are adequately contemplated by the noncompensable disability rating and the assignment of SMC(k) disability compensation. Accordingly, the Veteran's claim for entitlement to an increased disability rating for the service-connected ED, is denied. ? REASONS FOR REMAND Entitlement to service connection for a disability manifested by fatigue, to include chronic fatigue syndrome. In the December 2019 rating decision, the AOJ made the favorable finding that the Veteran's VA treatment records show complaints of chronic fatigue. See December 2019 Rating Decision. Such findings are binding on the Board. 38 U.S.C. § 5104(b)(4); 5104A; 38 C.F.R. §§ 3.104(c), 20.801(a). The Veteran's VA treatment records show that the Veteran has complained of fatigue-like symptoms since March 2016, and his active problem list includes "Fatigue." In December 2019, the Veteran was afforded a Chronic Fatigue Syndrome (CFS) DBQ. The Veteran reported that he started experiencing chronic fatigue about 8 to 9 years prior to the 2019 examination. The examiner concluded that the Veteran does not have a current diagnosis of CFS. The examiner opined that although the Veteran noted symptoms of debilitating fatigue, headaches, neuropsychological symptoms, and sleep disturbances he does not currently meet criteria for a diagnosis of CFS. The examiner noted that the Veteran has other clinical conditions that "may" produce similar symptoms, which have not been excluded, to include PTSD/depression and anxiety. Given the speculative wording of the examiner's opinion and other inadequacies in the medical opinion, the Board must remand for a new VA examination and medical opinion. See Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to obtain a medical opinion as to whether he has a diagnosis of chronic fatigue syndrome based on the criteria set forth in 38 C.F.R. § 4.88a. See 38 C.F.R. § 3.317(a)(2)(i)(B)(1). The examiner must address whether at least six of the ten listed conditions for a diagnosis of CFS under § 4.88a are present in the Veteran's case. If the Veteran does not have a diagnosis of chronic fatigue syndrome, the examiner should provide an opinion as to whether the Veteran's fatigue is a manifestation of an undiagnosed illness. See 38 C.F.R. § 3.317(b). If the Veteran does not have a diagnosis of chronic fatigue syndrome, the examiner should provide an opinion as to whether any current disability manifested by fatigue had its onset during service or is related to any incident of service, to include environmental hazards from stationing in Southwest Asia, including based on airborne hazards and chemical exposures and potential combined synergistic effects of such hazards and exposures. If the examiner finds that another condition (or conditions) is more likely responsible for the Veteran's symptoms of fatigue, such as obstructive sleep apnea and/or PTSD and alcohol use disorder with traumatic brain injury, the examiner must explain why the fatigue is due to that condition (or conditions). ? If the Veteran has a disability manifested by fatigue separate and apart from his service-connected PTSD and alcohol use disorder with traumatic brain injury, the examiner should provide an opinion as to whether that condition was either (a) caused by, or (b) aggravated by his service-connected PTSD and alcohol use disorder with traumatic brain injury. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.E. Brand, 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.