Citation Nr: 1512170 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 13-07 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable rating for service-connected hypertension. 2. Entitlement to an initial compensable rating for service-connected oligomenorrhea polycystic ovary syndrome (PCOS). 3. Entitlement to service connection for a back disorder. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for a heart disorder, to include premature arterial ventricular contraction. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Johnson, Associate Counsel INTRODUCTION The Veteran had active service from August 1991 to February 2009. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2014, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. At her hearing, the Veteran clearly withdrew her claim for entitlement to a rating in excess of 10 percent for service-connected migraine headaches. See Hearing Transcript pg 1. Accordingly, this issue is no longer before the Board. Following the Veteran's hearing, the record was held open so newly identified evidence could be obtained. Such evidence was received and associated with the claims file. Additionally, in a November 2014 written statement the Veteran's representative waived initial AOJ consideration of the newly submitted evidence. See 38 C.F.R. 20.1304(c). Accordingly the Board finds appellate consideration may proceed without any prejudice to the Veteran. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" and "VBMS" systems to ensure a total review of the evidence. The issues of entitlement to service connection for sleep apnea and a heart disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's hypertension required continuous medication to control throughout the period on appeal; but did not demonstrate diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more at any point during the period on appeal. 2. The Veteran's symptoms of oligomenorrhea polycystic ovary syndrome are not controlled by continuous treatment. 3. The Veteran does not have a back disorder which began during, or was otherwise caused by, her active duty service. CONCLUSIONS OF LAW 1. The criteria for an initial rating not to exceed 10 percent for service-connected hypertension have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.104, Diagnostic Code (DC) 7101 (2014). 2. The criteria for an initial rating not to exceed 30 percent for service-connected oligomenorrhea polycystic ovary syndrome have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.27, 4.40, 4.116, Diagnostic Code (DC) 7613 (2014). 3. The criteria for entitlement to service connection for a back disorder have not been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings The Veteran is seeking increased initial ratings for her service-connected hypertension and PCOS. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Each of the Veteran's appeals is addressed in turn below. Hypertension The Veteran is seeking an initial compensable rating for her service-connected hypertension. Her hypertension has been assigned a noncompensable rating under DC 7101 throughout the period on appeal. VA regulations provide a 10 percent rating is warranted for: * Diastolic pressure predominantly 100 or more, * Systolic pressure predominantly 160 or more, or * Minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. A higher 20 percent rating is warranted for: * Diastolic pressure predominantly 110 or more, or * Systolic pressure predominantly 200 or more Id. As will be discussed below, the Board finds a higher rating not to exceed 10 percent was warranted throughout the period on appeal. During the period on appeal the Veteran's blood pressures has generally ranged from 128/78 in February 2009 and 130/64 in June 2014 to 161/91 and 164/89 in October 2014. Overall, the evidence does not show that her blood pressure manifests readings that "predominately" reach the thresholds for the minimum 10 percent rating. However, the medical records reflect the Veteran has continuously been prescribed medication, including Lisinopril, throughout the period on appeal to control her hypertension. Therefore, affording all benefit of the doubt to the Veteran, the Board finds a higher 10 percent is warranted. To this extent, her appeal is granted. A higher 20 percent rating is not warranted unless the diastolic pressure is predominantly 110 or more and systolic pressure is predominantly 200 or more. The evidence does not establish the Veteran had blood pressure readings this high at any point during the period on appeal. As discussed above, her highest ratings, including 161/91 and 164/89 in October 2014 are still well below 200/110. Therefore, the criteria for a higher 20 percent rating were not met at any point during the period on appeal. Based on the foregoing, a rating not to exceed 10 percent for service-connected hypertension is granted. PCOS The Veteran is also seeking an increased rating for her service-connected connected oligomenorrhea polycystic ovary syndrome (PCOS). At the onset, the Board notes this issue was not clearly developed by the AOJ. In a September 2009 rating decision and February 2013 Statement of the Case (SOC), the RO denied entitlement to service connection for this issue. However, in an April 2014 SSOC the RO determined the current noncompensable rating for PCOS was continued. It is not clear when service connection was granted. However, based on the April 2014 SSOC, the Board finds that service connection has been granted and an initial noncompensable rating was assigned. Because an SSOC on the increased rating claim was issued, the Veteran is under reasonable belief this issue is on appeal. Therefore, the issue before the Board is entitlement to a compensable rating for service-connected PCOS, as reflected above. There is no diagnostic code (DC) for PCOS. Therefore, the Veteran's disability is rated by analogy to existing DCs in the rating schedular. See 38 C.F.R. § 4.27. Based on review of the 'DAS' computer system, it appears the Veteran's PCOS is currently assigned a noncompensable rating under analogy to DC 7613, for disease of the uterus. This DC is rated under General Rating Formula for Disease of the Female Reproductive Organs, which provides a noncompensable rating is warranted for symptoms that do not required continuous treatment, a higher 10 percent rating is warranted for symptoms that required continuous treatment, and a maximum 30 percent rating is warranted for symptoms not controlled by continuous treatment. As discussed, the Veteran has been assigned a noncompensable rating for this disability throughout the period on appeal. Additionally, the Board notes that in a February 2013 rating decision, she was granted entitlement to special monthly compensable based on loss of use of her creative organ, relating to her infertility. She has not appeal this determination, so this issue is not before the Board. As will be discussed below, the Board finds the maximum 30 percent rating under this DC is warranted throughout the period on appeal. In this case, the Veteran has consistently sought medical treatment for her service-connected PCOS. In seeking treatment, she reported symptoms of infertility, oligomenorrhea (infrequent period), hirsutism (male-pattern hair growth), acne, intermittent galactorrhea (spontaneous flow of milk from the breast), elevated testosterone levels, and frequent cysts around her ovaries, all of which were associated with her PCOS. Although the Veteran continuously took medication, including Clomid, to control these symptoms, the medical evidence reflects these symptoms continued to increase in severity throughout the period on appeal. In March 2009, she was provided with a VA examination. The examiner noted the Veteran's symptoms described above, and indicated recent imaging results showed multiple small peripheral cysts around her ovary. The examiner indicated the Vetera had been prescribed Clomid medication for the past two years but had seen no results. The examiner explained that her infertility and irregular menstrual cycles continued despite the medication, including menstruation as infrequent as once a year. Therefore, the evidence reflects the Veteran's symptoms of PCOS were not controlled by continuous medication, and she meets the criteria for a 30 percent rating under DC 7613. Because this is the schedular maximum rating available under that DC, no higher rating is warranted. Accordingly, entitlement to an initial rating not to exceed 30 percent for service-connected PCOS is granted. The Board has considered whether a separate or higher rating would be warranted if the Veteran's symptoms were rated as analogous to a different DC. Specifically, the Board has considered a rating under DC 7622, for displacement of the uterus. This DC provides ratings for symptoms experienced by the Veteran, including continuous menstrual disturbances. However, a 30 percent rating is also the schedular maximum rating available under this DC. Therefore, there would be no benefit to the Veteran is rating her symptoms under this code, and rating under the currently assigned DC 7613 is continued. Extraschedular and TDIU Considerations Regarding both of her appeals above, the Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case the medical evidence fails to show anything unique or unusual about the Veteran's hypertension that would render the scheduler criteria inadequate. Regarding her PCOS, the Board does note many of her symptoms, including infertility, infrequent period, and unwanted hair pattern growth, are not specifically addressed by the rating criteria assigned. However, her assigned rating does contemplate "symptoms" which are not controlled by medication. In this case, the presence of these symptoms served as the basis for the schedular maximum rating assigned above. However, even if the Board were to find that step one of Thun had been satisfied regarding her service-connected PCOS, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran's PCOS disability does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). The Veteran has not been hospitalized for this condition during the period on appeal, and has not alleged her service-connected PCOS interfered with her employment. Thus, even if her disability picture was exceptional or unusual, referral for extraschedular consideration would not be warranted, even considering the combined effect of all her service connected disabilities. See Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the evidence reflects the Veteran continues to be employed full-time. For example, during her August 2012 VA examination the examiner noted she currently worked at a desk job for a packaging company. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected hypertension and PCOS. Service Connection The Veteran is also seeking service connection for several disabilities, including her back, heart disability, and sleep apnea. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). At the onset, the Board notes the Veteran's service treatment records (STRs) are incomplete. In July 2009 the AOJ determined part of the Veteran's STRs were missing. In an August 2009 letter the AOJ notified the Veteran of the missing STRs and provided her with an opportunity to submit any copies herself. During her hearing, the Veteran stated she submitted all STRs in her possession and they are included in the claims file. The Board is aware that when service treatment records are unavailable through no fault of the Veteran it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinksi, 1 Vet. App. 365, 367 (1991). Back In this case, the Veteran is seeking service connection for a back disability. During her September 2014 hearing, the Veteran testified that she injured her back while lifting heavy boxes during active duty service, and her back has hurt ever since. The Veteran's available STRs have been carefully reviewed. In September 2004, she sought treatment for pain in her left shoulder after lifting weights and was assessed with "upper shoulder/back strain." Therefore, the Veteran was diagnosed with back strain during active duty service. However, the available STRs do not establish the Veteran developed and chronic back condition during active service. Although the available records reflect she sought medical treatment for other conditions, these records do not establish she sought any additional treatment for back pain after September 2004. Instead, the Veteran herself specifically denied experiencing any back pain on several occasions after that time, including on her December 2004 Post-Deployment Health Assessment, on her March 2008 Report of Medical History, and on her October 2008 Post-Deployment Health Assessment. On each of these occasions, the Veteran reported experiencing only medical symptoms, including chest pain, but indicated she did not experience any back pain. Therefore, the Veteran's contemporaneous statements made in the course of medical treatment denying back pain during active duty service provide highly probative evidence against her appeal. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Shortly after her separation from active service, the Veteran was provided with a VA examination in February 2009. The examiner reviewed the Veteran's records, as well as personally interviewed the Veteran, and reported she did not have any current back disorder, only chronic low back pain. The examiner noted the Veteran had no history of trauma to the back, and range of motion was generally normal, muscle strength was normal, she walked with a normal gait, and examination showed no swelling or edema. The examiner opined the Veteran had mild lumbosacral spine strain. However, the examiner did not provide any medical opinion relating the Veteran's current low back strain to her active duty service. In August 2012, the Veteran was provided with an additional VA examination. The examiner indicated the Veteran was diagnosed with lumbar strain in March 2009, but indicated no arthritis was documented. After physical examination, the examiner opined the Veteran had limitation of flexion of motion of the lumbosacral spine and partial lumbarization of S1. This examiner also did not provide a nexus opinion. In December 2012, the Veteran was provided with an additional VA exam. The examiner indicated the Veteran was diagnosed with lumbarization of the L5 vertebra in August 2012, defined as an anomalous fusion of the fifth lumbar vertebra to the first segment of the sacrum. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1162 (32nd ed. 2012). The examiner stated the sacralization reflected on the August 2012 x-ray was not a condition acquired during active service, but instead was something the Veteran was born with. He opined the Veteran's back was not exacerbated beyond its natural progression by her active duty service. In a February 2014 addendum, the examiner explained that the Veteran does not have sacralization of the L5, instead the x-ray finding showed lumbarization of S1, defined as a condition in which the first segment of the sacrum is not fused with the second. See DORLAND'S at 1076. The examiner explained that lumbarization is not a disease process, or associated with any disease process, but instead is only an x-ray finding. The examiner again stated the Veteran's back condition was not related to her active service. Based on the foregoing, the evidence does not establish the Veteran has a current back disability that began during, and continued since, her active duty service. Although she was treated for back strain once during her active duty service, the Veteran herself specifically denied experiencing any back pain on several occasions spread over several years after this treatment. Additionally, although she was diagnosed with lumbosacral strain in February 2009, the examiner did not relate this strain to her temporary in-service strain five years earlier. Additionally, the VA examiner opined the Veteran has an anomalous fusion of her sacrum, which was not caused or aggravated by her active duty service. The medical evidence does not include any medical opinion to the contrary. Therefore, the evidence does not establish the Veteran has a back disability which began during and continued since, or was otherwise caused by, her active duty service, and her appeal is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in February 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Available service treatment and post-service VA treatment records have been obtained, and the Veteran did not indicate she received any relevant private treatment. In September 2014, the Veteran was provided with a hearing before the undersigned Veterans Law Judge (VLJ). In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed disabilities. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file, and specifically inquired as to outstanding medical records. The identified records relevant to the issues discussed above have been obtained and associated with the claims file. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with several VA examinations, the reports of which have been associated with the claims file. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability. Therefore, the Board finds the VA examination was thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claims. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. [Continued on Next Page] ORDER Entitlement to an initial rating not to exceed 10 percent for service-connected hypertension is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial rating not to exceed 30 percent for service-connected oligomenorrhea polycystic ovary syndrome is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for a back disorder is denied. REMAND Sleep Apnea The available medical evidence is not clear whether the Veteran currently has a diagnosis of sleep apnea. She reported she was diagnosed with sleep apnea in service and provided with a CPAP machine. The available service treatment records include sleep apnea on the list of prior medical problems from the Veteran's reported history, but do not include any diagnosis. Additionally, in May 2009 the Veteran was provided with a sleep study which revealed she did not have obstructive sleep apnea. However, the December 2012 VA examiner indicated that due to the Veteran's symptoms, a repeated sleep study was needed. In a February 2014 addendum, the examiner stated the Veteran did not respond to phone calls in order to schedule her sleep study. However, any attempts to contact the Veteran to schedule a sleep study are not documented in the claims file. Given the heightened duty to assist, due to the Veteran's incomplete STRs, the Board finds remand is required for another opportunity to obtain a repeat sleep study. The AOJ should fully document all attempts to contact the Veteran to schedule the sleep study. However, if the Veteran does not cooperate, this issue will be returned to the Board for adjudication upon the existing evidence. Heart Disorder The Veteran is also seeking service connection for a heart disorder. The evidence includes EKG reports showing premature ventricular complex and premature atrial complex heartbeats, but does not reflect the Veteran is currently diagnosed with any heart disorder. However, during her September 2014 hearing, the Veteran testified that she recently failed a cardiac stress test, in approximately April 2014, the report of which is not included in the claims file. See Hearing Transcript pg 13. Because the results of this stress test would be highly relevant to the issue on appeal, remand is required to obtain this medical record. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a repeat sleep study as suggested by the December 2012 VA examiner. Fully document all attempts to contact the Veteran to schedule this study in the claims file. If the Veteran fails to respond to attempts to schedule this study, return the issue to the Board for adjudication based on the evidence of record. 2. Obtain all available VA treatment records since September 2009, particularly including the results from any cardiac stress testing conducted around April 2014, and associate them with the claims file. 3. After completing the foregoing, conduct any additional development required, including provided updated VA examinations, if needed. 4. Then, readjudicate the appeals based on the complete claims file, including the results from any additional sleep study and the April 2014 cardiac stress testing. If the appeals remain denied, provide the Veteran and her representative with a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs