Citation Nr: 20005369 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-25 058 DATE: January 22, 2020 ORDER Service connection for obstructive sleep apnea (OSA) is granted. Service connection for an erectile dysfunction (ED), claimed as secondary to OSA, is granted. FINDINGS OF FACTS 1. The Veteran’s OSA is etiologically related to his active duty service. 2. The Veteran’s now service-connected OSA caused his ED. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an erectile dysfunction, as secondary to the now service-connected obstructive sleep apnea, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to January 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in, or aggravated by, active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310 (b). The United States Court of Appeals for Veterans Claims (Court) held in the case of Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. In determining whether service connection is warranted for a disability, 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Service connection for OSA is granted. The Veteran asserts that his sleep apnea had its onset during his active service. See January 2017 Statement in Support of Claim. A review of the Veteran’s service treatment records does not reflect a diagnosis of OSA. Post service, a May 2015 Pulmonary Notes reflects treatment for OSA with a CPAP. Furthermore, a February 2017 VA opinion notes that the Veteran was diagnosed with OSA in March 2012. The Veteran submitted a statement from a fellow servicemember that was received in January 2017. E.W.O. recalls that, on several occasions, both he and his spouse witnessed the Veteran, during active service, dozing off, snoring loudly, and gasping for air. VA obtained a medical opinion in May 2016. In reaching a negative opinion, the VA examiner found that the Veteran has a small oropharyngeal opening and has experienced substantial weight gain since active service. The examiner also found significant the lack of documentation of sleep-disordered breathing symptoms during active service in addition to the Veteran’s increase in age since discharge from active service. In February 2017, an additional VA medical opinion was obtained to determine the nature and etiology of the Veteran’s sleep apnea. The examiner provided a negative opinion. To support the opinion, the examiner noted that the Veteran’s weight was relatively stable during active service, and they noted there were no OSA-related complaints within his service treatment records. The examiner linked the Veteran’s weight gain since separation to his OSA. The VA examiner also supported the opinion with the fact that the Veteran’s OSA diagnosis came many years after separation from service. The Veteran has submitted two positive medical opinions. In the first opinion, received in January 2017 and authored by C.L.S., PhD, FAASM, a private board-certified sleep specialist and sleep medicine specialist, the specialist found that the Veteran’s OSA was not secondary to his sinusitis in that it did not cause the Veteran’s OSA. C.L.S. noted that the opinion was based on past evaluations and on a review of the Veteran’s record. The examiner found that the Veteran had symptoms of sleep apnea while he was on active duty. The examiner made this finding from the lay evidence of record. The examiner also opined that the Veteran developed additional medical disorders and abnormalities due to his history of untreated OSA. One of those medical disorders was noted to be ED. The Veteran’s sleep medicine specialist also provided another positive opinion in May 2017 in response to the RO’s March 2017 Statement of the Case and to the February 2017 VA medical opinion. The examiner noted that sleep apnea was not well known to laymen and to medical professionals during the years of the Veteran’s active duty. As a result, it is reasonable for there to be no documentation of snoring or other symptoms of sleep apnea within the Veteran’s service medical records. The examiner also asserted that recent research has demonstrated sleep apnea causes weight gain and that weight gain does not cause sleep apnea. The examiner also noted that general risk factors such as those relied on by the VA medical opinions cannot be applied to an individual when trying to explain why that individual has developed sleep apnea. Finally, the examiner stressed that given the characteristic or severity of the Veteran’s sleep apnea, it likely developed during his active service. As a result, based on the foregoing, the Board concludes that the Veteran’s sleep apnea originated during his active service. A private board-certified sleep specialist and sleep medicine specialist linked the Veteran’s reported symptoms from active service to the onset of his sleep apnea. Furthermore, the Board notes that the Veteran’s statements and his buddy statement concerning the presence and nature of his symptoms to be competent and credible. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board finds the value of the VA medical opinions are diminished as those opinions did not address the lay evidence of record. Accordingly, entitlement to service connection for sleep apnea is warranted as the evidence supports the claim. 2. Service connection for ED, claimed as secondary to OSA, is granted. In a January 2017 statement, the Veteran states he believes his now service-connected OSA caused his ED. Upon a review of the evidence of record, the Board finds the evidence supports a causal relationship between these conditions and as a result, service connection is warranted. VA has not obtained a medical opinion regarding the etiology of the Veteran’s erectile dysfunction. In January 2017, the Veteran submitted an opinion regarding the nature and etiology of his now service-connected OSA. In that opinion, the Veteran’s sleep medicine specialist highlighted that one of the symptoms of OSA is known to include ED. The examiner further noted that undiagnosed and untreated OSA can result in other medical disorders, which include ED. Given there is medical evidence to support the Veteran’s claim, service connection for an erectile dysfunction, as secondary to OSA, is warranted. See 38 C.F.R. §§ 3.102, 3.310. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.