Citation Nr: 1031691 Decision Date: 08/24/10 Archive Date: 09/01/10 DOCKET NO. 07-24 479A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for spondylosis, L5-S1. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a concussion with headaches. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 4. Entitlement to service connection for chronic bronchitis. 5. Entitlement to service connection for a heart disability. 6. Entitlement to service connection for sleep apnea. 7. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hypertension and if so whether the reopened claim should be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel INTRODUCTION The Veteran had active duty service from October 1975 to August 1989. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in April 2010. A transcript of the hearing is of record. Subsequent to the hearing, the Veteran submitted treatment records from Bloomingdale Medical and Valrico Brandon Medical Group, along with a waiver of his right to have the evidence initially considered by the RO. The claims of entitlement to an increased rating for spondylosis, L5-S1 and service connection for sleep apnea are addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. The Veteran's residuals of a concussion are manifested by very frequent completely prostrating and prolonged attacks of headaches productive of severe economic inadaptability. 2. Neither COPD nor bronchitis was present in service or until more than one year after the Veteran's discharge from service, and neither is etiologically related to service. 3. A heart disability was not present in service or until more than one year after the Veteran's discharge from service, and is not etiologically related to service. 4. In an unappealed November 1992 rating decision, service connection was denied for hypertension. 5. The evidence associated with the claims file subsequent to the November 1992 rating decision does not relate to an unestablished fact necessary to substantiate the claim; is cumulative and redundant of evidence already of record; and/or is not sufficient to raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating for residuals of a concussion with headaches have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8045, 8100 (2009). 2. COPD was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 3. Bronchitis was not incurred in or aggravated by active duty38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 4. A heart disability was not incurred in or aggravated by active duty nor may its incurrence or aggravation during active duty be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 5. New and material evidence has not been presented to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks an increased rating for residuals of concussion primarily manifested by headaches. He also seeks reopening of the claim of entitlement to service connection for hypertension, as well as service connection for multiple disabilities. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ- decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has been all required notice in response to his claim for a higher rating for residuals of a concussion with headaches. Moreover, the evidence currently of record is sufficient to substantiate his entitlement to the maximum schedular rating authorized for residuals of concussion with headaches. Therefore, no further development with respect to this claim is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. The record reflects that the Veteran has been provided all required notice in response to his service connection claims by letter dated in November 2006, prior to the RO's initial adjudication of the claims. With respect to the claim to reopen, the Board notes that the Court has held that, because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. The Court further held that the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with all required notice in a letter mailed in November 2006, prior to the initial adjudication of the claim to reopen. The letter not only informed the appellant of the specific technical meanings of "new" and "material," but also informed him of the bases for the denial in the prior decision and described the type of evidence that would be necessary to substantiate the elements that were found insufficient in the previous denial. The Board also notes that service treatment records and pertinent VA and private medical records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim to reopen. The Board is also unaware of any such outstanding evidence. VA examinations have been provided with respect to the service connection claims; however, VA has no obligation to provide an examination in response to a claim to reopen if new and material evidence has not been presented. See 38 C.F.R. § 3.159(c)(4). Accordingly, the Board will address the merits of the claims. II. Residuals of a Concussion with Headaches A. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2009). A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2009). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) West (2002); 38 C.F.R. § 4.3 (2009). B. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service- connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. After careful consideration, the Board finds that a rating of 50 percent is warranted for the Veteran's migraine headaches. The record shows that the Veteran experiences headache attacks three to five times per week on average, which is in excess of at least twice per month; that the attacks often last for prolonged periods of time; that they are completely prostrating; and that the Veteran misses several days from work each month as a result of the attacks. The Veteran testified in April 2010 that he experiences severe headaches approximately three to five times per week. He stated that he treats them with medication and by secluding himself in a darkened room. The Veteran's testimony is consistent with the evidence of record. Leave records from the Veteran and a headache diary maintained by the Veteran confirm that he missed several days of work each month over the last three years because of these headache attacks. A statement from the VA examiner in August 2009 indicates that the headaches had effects on occupational ability. In sum, the record shows that the Veteran experiences very frequent, completely prostrating and prolonged migraine-type attacks that are productive of severe economic inadaptability. Accordingly, the Board finds that the maximum schedular rating of 50 percent is warranted throughout the initial rating period. The Board has considered whether additional criteria would provide a higher rating for this disability. Specifically, the Board has considered all applicable criteria in light of 38 C.F.R. § 4.124a, Diagnostic Code 8045. As the current residuals of concussion consist entirely of headaches, the Board concludes that DC 8100 provides the highest rating applicable to the current manifestations of disability. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2009). In determining whether a case should be referred for extra- schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the record reflects that the Veteran has not required frequent hospitalizations for his disability and that the manifestations of the disability are consistent with those contemplated by the schedular criteria. The Board concludes that referral of this case for extra-schedular consideration is not in order. III. Claim to Reopen and Service Connection Claims A. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests cardiovascular disease to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). B. Analysis New and Material Evidence Claim Entitlement to service connection for hypertension was denied in an unappealed November 1992 rating decision based on the RO's determination that the Veteran did not have hypertension that was related to service. The RO noted no record of treatment for hypertension in service, no treatment or documented disability until a VA examination in October 1992, and no relationship between the current hypertension and service. The evidence before the RO at that time included the service medical records which showed blood pressure readings on multiple occasions in March 1977. Initially he had a reading of 130/98. He was given blood pressure checks on three days that month and these showed readings of 130/90, 128/80 and 124/80. Hypertension was not diagnosed on any of these occasions or at any other time during service. The October 1992 VA examination report notes that the Veteran reported that he had hypertension for 10 years. Blood pressure readings at that time were 140/92, 140/94 and 140/92. The diagnosis was hypertension. Evidence added to the record since the November 1992 decision includes statements of the appellant to the effect that he has had hypertension since service. Private and VA treatment records reflect findings of hypertension dating from 1992 to the present. The medical evidence submitted after the November 1992 denial does not tend to establish a nexus between service and current hypertension. It merely continues to show the presence of hypertension more than one year following the Veteran's discharge from service. Additional medical reports received since the prior decision at most relate to the Veteran's current condition and do not address a nexus to service. The Court has held that medical evidence which merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993). Statements from the Veteran have been received, but these cannot be considered material as to the matter of medical nexus. Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court noted that, "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108." Moreover, the Veteran's statements are similar to statements provided in connection with his prior claim. They are essentially cumulative in nature. Accordingly, the Board must conclude that new and material evidence has not been presented to reopen this claim. Service Connection Claims The Veteran seeks service connection for COPD, bronchitis and a heart disability. He urges that he had symptoms of COPD and bronchitis in service, and that he has had related lung problems since service. The Board notes that as a lay person, the Veteran is not competent to attribute any symptoms to COPD or bronchitis. Moreover, the service treatment records are negative for evidence of these claimed disabilities, and there is no post-service medical evidence suggesting the presence of either disability until many years following service. VA chest X-ray showed pulmonary emphysema in October 1992, and private treatment records reflect a diagnosis not prior to the year 2000. None of the medical evidence links the Veteran's COPD or bronchitis to service. Moreover, the Veteran has testified that no physician or health care provider has told him that there is a causal link between any current lung condition and service. As to the claim for service connection for a heart disability, there is no diagnosis of such a disability in service. VA chest X-ray in October 1992 showed the heart to be in the upper limits of normal for size, with normal-sized aorta. Subsequent to that time, the record is replete with reference to left ventricular hypertrophy related to hypertension. There is no medical opinion evidence that this condition is related to service. Having reviewed the entirety of the record, and with due regard for the Veteran's contentions, the Board finds that the preponderance of the evidence is against his claims. The Board acknowledges that the evidence of post service disability as to the three disabilities, more than a year following service separation. However, as there is no competent evidence of the disabilities in service, no evidence corroborating a continuity of symptomatology since service, and no medical opinion evidence linking any of the disabilities to service, the Board concludes that the preponderance of the evidence is against these claims. In reaching these conclusions, the Board has considered the Veteran's contentions. It is true that lay statements may be competent to support claims for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In the instant case, however, the evidence of record does not demonstrate that the appellant, who is competent to comment on post-service symptoms and his experiences in service, has the requisite expertise to render a medical diagnosis or to comment on a question of medical causation or aggravation. ORDER Entitlement to a disability rating of 50 percent for residuals of a concussion with headaches is granted, subject to the criteria governing the award of monetary benefits. Entitlement to service connection for chronic obstructive pulmonary disease is denied. Entitlement to service connection for chronic bronchitis is denied. Entitlement to service connection for a heart disability is denied. New and material evidence not having been received, reopening of the claim of entitlement to service connection for a hypertension is denied. REMAND The Veteran testified in April 2010 that he had been experiencing a recent increase in pain related to his low back disability. He described a radiating pain into the right leg since the most recent examination in July 2009. He also urged that the range of motion recorded during his most recent VA examination of the low back was suspect because he was pushed well beyond his pain limit, in his opinion. He stated that his pain had increased to a level of 8 to 10 out of 10 approximately three times per week lasting six hours despite medication. He felt that his level of daily activity was decreasing due to his low back disability and that it was affecting his livelihood as a driver. He reported that he was sustaining himself on medications in order to work and that he had been taking all of his medications during the day and could not sleep at night. He felt that the most recent examination of his low back did not accurately reflect his current level of functional impairment. Considering the Veteran's testimony as to a recent increase in severity of his symptoms, the Board finds that an additional examination to determine the current level of severity of the low back disability is warranted. As to the sleep apnea claim, the Veteran testified as to his history of traumatic brain injury (TBI) in service. He also alleged that his psychologist or psychiatrist indicated that his sleep apnea may be related to service-connected psychiatric disability. The Veteran is service-connected for an acquired mental disorder associated with concussion. VA treatment records dated in December 2008 reflect a diagnosis of chronic PTSD with TBI due to fall in 1987, impulse control disorder due to TBI, resolved, major depression, sleep apnea with related fatigue. Under the circumstances, the Board finds that an examination to include an opinion as to the likelihood of any relationship between sleep apnea and service or service-connected disability would be helpful. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The Veteran should be afforded an appropriate VA examination to determine the extent of all impairment due to his spondylosis, L5-S1. The claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 2. The Veteran should be afforded an examination by a physician with sufficient expertise to determine the etiology of any sleep any currently present or present at any time during the pendency of the claim. The claims files must be made available to and reviewed by the physician. Any indicated studies should be performed. Based on the examination results and a review of the claims files, the examiner should provide an opinion as to whether there is a 50 percent or better probability that any sleep apnea currently present or present at any time over the duration of this claim, was caused by or chronically worsened by the Veteran's service-connected disability, specifically his mental disorder. The rationale for all opinions expressed must be provided. 3. The RO or the AMC should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claims of entitlement to a higher rating for spondylosis, L5-S1 and service connection for sleep apnea in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 Supp. 2009). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs