Citation Nr: 23012106 Decision Date: 02/28/23 Archive Date: 02/28/23 DOCKET NO. 18-34 093A DATE: February 28, 2023 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for erectile dysfunction (ED) is granted. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(k) based on loss of use of a creative organ is granted. REMANDED Prior to March 2, 2020, entitlement to a rating greater than 20 percent for a lumbar strain with degenerative arthritis and intervertebral disc syndrome (IVDS) is remanded. From March 2, 2020, entitlement to a rating greater than 40 percent for a lumbar strain with degenerative arthritis and IVDS is remanded. Prior to March 2, 2020, entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Service caused the Veteran's PTSD. 2. The Veteran's PTSD caused his sleep apnea. 3. The Veteran's PTSD caused his ED. 4. The Veteran's ED results in an inability to have sexual intercourse without the use of medication. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125. 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107, 5108; 38 C.F.R. §§ 3.159, 3.303, 3.310. 3. The criteria for service connection for ED have been met. 38 U.S.C. §§ 1110, 1131, 5107, 5108; 38 C.F.R. §§ 3.159, 3.303, 3.310. 4. The criteria for SMC based on loss of use of a creative organ have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1986 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of December 2015 and September 2018 of an Agency of Original Jurisdiction (AOJ) of the U.S. Department of Veterans Affairs (VA). The Veteran testified before the undersigned in November 2021. A transcript of the hearing is in the claims file. Issue 1: Entitlement to service connection for posttraumatic stress disorder (PTSD) PTSD Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), for purposes of this appeal. 38 C.F.R. § 4.125. Merits In January 2021, the AOJ, in a Statement of the Case, summarized this appeal. It stated: [Y]ou provided a stressor statement of hitting a man with your vehicle in which the man died while stationed in Guam. You provided a letter from a VA psychologist who diagnosed you with PTSD and his opinion that your PTSD trauma occurred while in service on active duty due to striking and killing a resident. We received your Review PTSD DBQ diagnosing you with PTSD. You also provided a statement from your friend who was involved in the accident attesting to the event. We acknowledge your attempt to retrieve the police report of the accident from the local law enforcement and a response was submitted stating the records were most likely destroyed from a typhoon. Review of your service personnel records confirms that you were stationed in Guam. The records do not show you reported anything to your command of the incident as described. ... We could not confirm the claimed stressor occurred and therefore service connection is not warranted. While the AOJ did not expressly find that the Veteran satisfied the first and second prongs of the service connection criteria identified in 38 C.F.R. § 3.304(f), the Board finds he has. Indeed, he submitted private nexus opinions dated February 2016 (Dr. K.L.), May 2017 (Dr. C.L.), May 2017 (Dr. C.M.), April 2019 and May 2019 (Z.G., LMHC); and October 2020 (G.L., D.O.). These opinions, individually and collectively, are well researched, based on examination of the Veteran, and well articulated. Therefore, the Board agrees with the AOJ that this appeal turns on the third prong of the service connection criteria identified in 38 C.F.R. § 3.304(f), i.e., credible supporting evidence that the claimed in-service stressor occurred. For the third prong, the evidence concerning whether the claimed stressor occurred is limited. Nothing in the Veteran's service treatment records or service personnel records address the claimed motor vehicle accident in which a Guamanian national died. Indeed, the Board has only statements from the Veteran and H.A., the other service member who claimed to be in the motor vehicle at the time of the claimed accident. Neither the Guamanian authorities nor the Navy pursued legal or disciplinary action regarding the claimed event. Additionally, H.A.'s September 2016 statement extensively describes the circumstances of the claimed event, which are consistent with the Veteran's statements. Having weighed the evidence, the Board finds the Veteran and H.A. competent and credible. As such, H.A.'s statement, when balanced against the lack of contemporaneous evidence, satisfies the Board that it has credible supporting evidence that the claimed in-service stressor occurred. Given the foregoing, the Veteran has satisfied the three prongs of a PTSD claim based on the framework above. Therefore, the Board grants the appeal. Issue 2: Entitlement to service connection for sleep apnea Secondary Service Connection Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Merits In December 2020, the Veteran submitted an October 2020 private nexus opinion from G.L., D.O. G.L., in relevant part, stated: Proceeding under the assumption he has service-connected PTSD is significant because PTSD is a major factor in sleep disturbances, especially with someone who's disability rating is 70-100%. [C.P.], MD diagnosed him with hypersomnia with sleep apnea on October 5, 2008. A sleep study performed on January 20-21, 2015 resulted in a diagnosis of moderate obstructive sleep apnea requiring CPAP at 11-20cm of pressure. The presence of PTSD and OSA in [the Veteran] underscores the body of evidence supporting the bidirectional relationship of PTSD and OSA, confirming that PTSD is etiologically related to OSA. I believe, in his case, the PTSD is etiologically related and contributes to his OSA. Further, [the Veteran] does not exhibit a body habitus that would offer other explanations for his moderate OSA which has been confirmed via the above testing. In January 2021, the AOJ, in a Statement of the Case, found: We have a medical nexus to support that your residuals of sleep apnea is shown to be related to your non-service-connected post-traumatic stress disorder. G.L.'s opinion is well researched, based on examination of the Veteran, and well articulated. Further, it satisfies the three prongs of a secondary service connection claim by identifying the primary and secondary disabilities, i.e., PTSD and sleep apnea, while causally connecting the former to the latter. The AOJ did not examine the Veteran for this claim because it did not service connect the Veteran's PTSD. Because the Board has service connected it, and because G.L.'s opinion is highly probative, the Board will grant the appeal. Issue 3: Entitlement to service connection for erectile dysfunction (ED) Secondary Service Connection Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Merits In December 2020, the Veteran submitted an October 2020 private nexus opinion from G.L., D.O. G.L., in relevant part, stated: There exists evidence that both PTSD and OSA are etiologically related to erectile dysfunction (ED). Psychological factors are involved in the development of ED and include performance-related issues (e.g., performance anxiety), traumatic past experiences, relationship problems, anxiety, depression, and stress. The rate of erectile dysfunction was 85% in patients with PTSD and 22% in controls. Moderate to severe erectile dysfunction was present in 45% of the patients with PTSD and in only 13% of controls. Significantly more patients with PTSD (57%) than controls (17%) were using psychotropic medications. [The Veteran] is presently on duloxetine. Veterans with PTSD experience a significantly higher rate of sexual dysfunction than do veterans without PTSD. ED and overall sexual dysfunction were highly prevalent in patients with OSA. Irrespective of known risk factors, mean nocturnal SaO(2) was an additional, independent correlate of these dysfunctions, suggesting that OSA-related intermittent nocturnal hypoxemia specifically contributes to the development of ED. In January 2021, the AOJ, in a Statement of the Case, found: We have a medical nexus to support that your residuals of erectile dysfunction is shown to be related to your non-service-connected post-traumatic stress disorder and non-service-connected obstructive sleep apnea. G.L.'s opinion is well researched, based on examination of the Veteran, and well articulated. Further, it satisfies the three prongs of a secondary service connection claim by identifying the primary and secondary disabilities, i.e., PTSD and ED, while causally connecting the former to the latter. The AOJ did not examine the Veteran for this claim because it did not service connect the Veteran's PTSD or sleep apnea. Because the Board has service connected his PTSD, and because G.L.'s opinion is highly probative, the Board will grant the appeal. The Board need not address the relationship (causal or aggravation) between the Veteran's sleep apnea and ED. Issue 4: Entitlement to SMC under 38 U.S.C. § 1114(k) based on loss of use of a creative organ Background Law In January 2021, the AOJ, in a Statement of the Case, stated: Entitlement to an additional payment of compensation is established when service-connected impairment imposes a special level of disability. Special monthly compensation under 38 U.S.C. § 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, the anatomical loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy) or has received radiation treatment of breast tissue. Special monthly compensation may be granted for loss of use of a creative organ. Loss of use of a creative organ exists when there is absence of sperm, insufficient viable motile sperm to produce fertilization, or blockage of or damage to the reproductive tract which prevents the natural transport of either sperm or ovum. If due to service-connected causes male impotence or erectile dysfunction, defined as the inability to obtain and maintain sufficient penile erection for sexual intercourse, will constitute loss of use of a creative organ. Merits An October 2019 VA treatment record states: His main issue is ED, which he follows w/ outside urologist. He has been receiving Alprostadil suppository, was recommended to also try vacuum pump and would like VA to provide this. VA regulations do not define what level of ED warrants SMC. However, examples in 38 C.F.R. § 3.350 indicate that SMC is warranted when a creative organ is sufficiently impaired to preclude procreation. Based on the above record, the Veteran's urologist has prescribed Alprostadil in suppository form and a vacuum pump to treat the Veteran's ED. These measures demonstrate the Veteran cannot achieve an erection sufficient for sexual intercourse without medication. Accordingly, SMC based on loss of use of a creative organ is granted. REASONS FOR REMAND Remand is warranted for four issues. Issue 4: Prior to March 2, 2020, entitlement to a rating greater than 20 percent for a lumbar strain with degenerative arthritis and intervertebral disc syndrome (IVDS) Issue 5: From March 2, 2020, entitlement to a rating greater than 40 percent for a lumbar strain with degenerative arthritis and IVDS The Veteran testified that his back lumbar strain with degenerative arthritis and IVDS had worsened since his March 2020 VA examination. Therefore, the Board will remand for a new examination before it adjudicates his appeal. For the Veteran's understanding, because he has IVDS, the Board may rate his back disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula) under 38 C.F.R. § 4.71a. The Formula, as relevant here, requires "incapacitating episodes." Under Note 1(1) to the Formula, VA has defined an incapacitating episode as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." The Board highlights this because the Veteran testified, in part, about requiring bed rest to treat his back disability. As seen above, unless bed rest is "prescribed by a physician and treatment by a physician," it does not satisfy the definition of "incapacitating episode." The Board has not identified any evidence that, based on the definition above, supports a finding of an "incapacitating episode." While the Board is remanding to obtain a new examination, the Veteran is encouraged to submit evidence that he has been prescribed bed rest by a physician. Issue 6: Prior to March 2, 2020, entitlement to a total disability based upon individual unemployability (TDIU) This issue is inextricably intertwined with the Board's grants of service connection for PTSD, sleep apnea, and ED. Thus, remand is warranted for the AOJ to implement the Board's grants before the Board adjudicates his appeal. (Continued on the next page) The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his lumbar strain with degenerative arthritis and IVDS. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.