Citation Nr: 1603329	
Decision Date: 02/02/16    Archive Date: 02/11/16

DOCKET NO.  14-04 344	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to service connection for erectile dysfunction.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney-at-Law


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from January 1979 to October 1985.

This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2009 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  Jurisdiction of the claims file was subsequently transferred to the Houston, Texas RO.

The Board has reviewed the Veteran's electronic records (Virtual VA and VBMS) prior to rendering a decision in this case.


FINDINGS OF FACT

1.  Resolving all reasonable doubt in favor of the Veteran, the Veteran's currently diagnosed sleep apnea was incurred during his active duty.

2.  Resolving all reasonable doubt in favor of the Veteran, the Veteran's currently diagnosed erectile dysfunction was incurred secondary to medications prescribed for a service-connected disability.


CONCLUSIONS OF LAW

1.  Resolving doubt in favor of the Veteran, sleep apnea was incurred during active duty.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015).

2.  Resolving doubt in favor of the Veteran, erectile dysfunction was incurred secondary to a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In this decision, the Board grants entitlement to service connection for sleep apnea and erectile dysfunction, which constitutes a complete grant of these claims.  Therefore, no discussion of VA's duty to notify or assist is necessary with respect to these issues.

II.  Service Connection

A.  General Law and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, 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.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. § 3.310(a).  The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service- connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  See Allen v. Brown, 7 Vet. App. 439 (1995).

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).  However, the United States Court of Appeals for the Federal Circuit  (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

B.  Sleep Apnea

The Veteran contends that he has sleep apnea as a result of his active service.  

A service treatment record from November 1981 reflects that the Veteran had occasional nocturnal sensations of dyspnea.  The treatment provider thought that the dyspnea was possibly related to postnasal drip or anxiety.  It was noted that there was "no evidence of sleep apnea or cardiopulmonary [disease]," but the examiner also indicated that the Veteran had questionable sleep apnea.  Another treatment record from November 1981 reflects that the Veteran had occasional experiences of awakening at night gasping for breath; questionable sleep apnea was diagnosed.

In February 2009, the Veteran underwent a sleep study.  A diagnosis of obstructive sleep apnea was given.

As noted above, in-service examiners gave the Veteran a diagnosis of questionable sleep apnea while he was on active duty.  His complaints of waking from sleep and gasping for air were recorded in the service treatment records.  As such, the Board finds that the requirement that there have been an in-service injury or event has been met.  Additionally, the current treatment records clearly document that the Veteran has a current diagnosis of sleep apnea.  The question remaining is whether there is a causal connection (or "nexus") between these in-service events and the Veteran's currently diagnosed sleep apnea.

The Veteran has indicated in multiple lay statements that he has snored and had difficulty sleeping since his time on active duty.  The Board finds the Veteran's statements regarding the onset and continuation of his sleep symptoms to be credible.  The Veteran is competent to describe the circumstances surrounding his in-service snoring and sleep disturbances, because such actions come to him through his senses and, as such, require only personal knowledge rather than medical expertise.  See Layno, supra.  See also Buchanan, supra (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence).  In this case, the Veteran's statements provide competent, credible evidence of a continuity of sleep symptoms dating from his time on active duty through the present.  Notably, no medical treatment provider has provided an alternative etiology for the Veteran's sleep apnea.

The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  However, the threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83.  Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  In this case, the Board finds that the lay testimony provides sufficient support for the present claim.

In light of the competent and credible lay testimony of record, the Board finds that the Veteran's sleep apnea cannot be satisfactorily disassociated from his service.  The evidence is, at the very least, in relative equipoise as to whether the Veteran's current sleep apnea was incurred as a result of the Veteran's service.  Therefore, the Board will resolve doubt in favor of the Veteran and grant the Veteran's claim.

C.  Erectile Dysfunction

The Veteran contends that he has erectile dysfunction secondary to medications he takes to treat his service-connected posttraumatic stress disorder (PTSD).

In July 2012, the Veteran was afforded a VA compensation and pension examination.  The examiner gave the Veteran a diagnosis of erectile dysfunction.  The examiner concluded that the Veteran's erectile dysfunction was as likely as not attributable to the combined problem of multiple medications; he later specified that it was as likely as not that the etiology of the Veteran's erectile dysfunction was his psychological problems and medications for treating the same.  At the end of the examination, the examiner opined that the Veteran's erectile dysfunction was less likely than not due to his service.  He explained that it was true that psychological problems can contribute to the problem of erectile dysfunction, and especially the medication to treat depression and mood disorders.  However, he also noted that the Veteran had the non-service-connected disabilities of diabetes and hypertension, and the medication to treat those disabilities can also be related to problems with sexual dysfunction.  In view of the Veteran's multiple disabilities and medications, he could not say that the Veteran's psychological problems of the medications to treat the same was the cause of his sexual dysfunction; his sexual dysfunction was likely due to a combination of all of his problems.

Here, the Veteran clearly has a current diagnosis of erectile dysfunction.  There is only one etiology opinion of record-the one offered by the July 2012 VA examiner.  The Board acknowledges that at the end of the report, the VA examiner indicated that the Veteran's erectile dysfunction was less likely than not due to his service.  However, in his rationale supporting his opinion, the examiner actually included the Veteran's service-connected psychiatric problems and medication used to treat the same as part of the total etiology of the given erectile dysfunction.  In fact, earlier in the report, the examiner specifically opined that it was as likely as not that the etiology of the Veteran's erectile dysfunction was his psychological problems and medications for treating the same.

As noted above, the threshold for finding a link between current disability and service is low.  Locklear, supra; McLendon, supra.  The opinion from the July 2012 VA examiner indicates that the Veteran's erectile dysfunction is at least partially-if not mostly-due to medications used to treat his service-connected psychiatric problems.  At the very least, the Board finds that the Veteran's erectile dysfunction cannot be satisfactorily disassociated from the medications used to treat his service-connected psychiatric problems.  The evidence is, at the very least, in relative equipoise.

In summary, for the reasons explained above, having resolved doubt in favor of the Veteran, service connection for erectile dysfunction is warranted, secondary to medication prescribed for a service-connected disability.  38 C.F.R. § 3.310(a).


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ORDER

Service connection for sleep apnea is granted.

Service connection for erectile dysfunction is granted.




____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs