Citation Nr: 1025438 Decision Date: 07/08/10 Archive Date: 07/19/10 DOCKET NO. 08-28 314 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 30 percent for PTSD. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision in which the RO granted service connection and assigned an initial 30 percent rating for PTSD, effective July 25, 2007. In February 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2008, and later that month, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). This appeal also arose from a June 2009 rating decision in which the RO denied claims for service connection for obstructive sleep apnea, as secondary to service-connected PTSD, and a TDIU. In June 2009, the Veteran filed an NOD, and an SOC was issued in December 2009. Later that month, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for his PTSD, the Board has characterized this claim in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service- connected disability). The Board's decision addressing the claim for service connection for obstructive sleep apnea, claimed as secondary to PTSD, is set forth below. The claims for an initial rating in excess of 30 percent for PTSD and for a TDIU are addressed in the remand following the order; those matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. The most persuasive medical opinion to address the question of whether there exists a nexus between obstructive sleep apnea and the Veteran's service-connected PTSD is adverse to the claim. CONCLUSION OF LAW The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability ((or, as here, between service-connected disability and the disability), degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a November 2008 pre-rating letter provided notice to the Veteran of what information and evidence was needed to substantiate the claim for secondary service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also included general information pertaining to VA'S assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The June 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the November 2008 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, private treatment records, Social Security Administration (SSA) records, and the report of a March 2009 VA examination. Also of record and considered in connection with this matter are various written documents provided by the Veteran. The Board also finds that no additional RO action to further develop the record on the claim for service connection for obstructive sleep apnea, as secondary to PTSD, is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from 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). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service- connected disability. See 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). [Parenthetically, the Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). However, given the basis for the denial as noted below, any further discussion of the amendment is unnecessary.] 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. See generally 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Considering the claim for secondary service connection in light of the above, the Board finds that the claim must be denied because the preponderance of the evidence establishes that the Veteran's obstructive sleep apnea was not caused and is not aggravated by his service-connected PTSD. The Veteran has been diagnosed with obstructive sleep apnea, as evidenced by the private sleep study from December 2007, diagnosing severe obstructive sleep apnea. The medical evidence of record, however, contains conflicting medical opinions on the question of whether the Veteran's obstructive sleep apnea was caused or aggravated by his service-connected PTSD. In December 2007, the Veteran's private treating physician submitted an opinion stating that a connection existed between PTSD and sleep apnea, which he noted was supported by accompanying documents. He believed within reasonable medical certainty, therefore, that the Veteran's PTSD generally "contributed" to his sleep apnea. Although the physician indicated that he was attaching supporting documentation, nothing further was attached or provided regarding this physician's opinion. The Veteran was afforded a VA examination in March 2009. The examining physician reviewed the Veteran's claims file and medical records. He noted that the Veteran's onset of obstructive sleep apnea was in 1994, manifested by loud snoring, daytime sleepiness, and breathing problems at night. The course of his disability since onset had improved. On physical examination, the Veteran had normal heart sounds, and no signs of venous congestion or respiratory abnormalities. The Veteran was diagnosed with obstructive sleep apnea. The examining physician opined that it was less likely than not that the Veteran's obstructive sleep apnea was secondary to his service-connected PTSD because PTSD does not cause sleep apnea. He also opined that it was less likely than not that his sleep apnea was aggravated beyond its natural progression by PTSD. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds that the VA examiner's opinion in which he found it was less likely than not that the Veteran's sleep apnea was secondary to or aggravated by his PTSD, is the most probative medical opinion on this point. The physician's opinion was based upon full consideration of the Veteran's service and post-service records, including the Veteran's assertions and an examination of the Veteran. The examining physician also specifically addressed whether the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD. Thus, the Board accepts this opinion as probative evidence on the medical nexus question. In his October 2008 opinion, the Veteran's private physician failed to specifically discuss how the Veteran's obstructive sleep apnea was related to his PTSD. Instead, the physician noted the existence of a general connection between PTSD and obstructive sleep apnea. He did not indicate what type of relationship existed between obstructive sleep apnea and PTSD, and how that related to the Veteran's own symptomatology. Although the physician asserted that the Veteran's PTSD "contributed to" his obstructive sleep apnea, he failed to consider whether the Veteran's PTSD caused or aggravated the Veteran's obstructive sleep apnea beyond its natural progression. A general "connection" between the two disabilities, without any discussion of the Veteran's specific symptomatology, is too tenuous a basis upon which to grant the Veteran's claim for service connection. For these reasons, the Veteran's private physician's opinion is afforded little, if any, evidentiary weight. In short, the most persuasive medical opinion evidence weighs against the claim. Finally, as for any direct assertions by the Veteran that there exists a medical nexus between his PTSD and his obstructive sleep apnea, such evidence provides no basis for allowance of the claim. As indicated above, the matter on which this claim turns is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without appropriate medical training and expertise, he is not competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for secondary service connection for obstructive sleep apnea must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert,1 Vet. App. at 53-56. ORDER Service connection for obstructive sleep apnea, claimed as secondary to service-connected PTSD, is denied. REMAND The Board's review of the claims file reveals that further RO action on the claims remaining on appeal is warranted. The record reflects that at the Veteran's last VA examination for PTSD in January 2008, he reported that he was working full-time and did not miss any work due to his PTSD. Recent private medical records obtained from the Veteran's treating physician, as well as the report of the Veteran's March 2009 VA examination for obstructive sleep apnea, include notations that the Veteran took early retirement from his job in July 2008, due to symptomatology related to PTSD. This evidence indicates that the Veteran's PTSD may have worsened, possibly warranting a higher rating. In light of the Veteran's contentions of increased and additional symptomatology, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate service-connected PTSD. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim for a TDIU, the Board notes that, as found by the RO, the Veteran is currently ineligible for schedular consideration of a TDIU because he does not have a single disability rated 60 percent and his combined disability rating is less than 70 percent. See 38 C.F.R. § 4.16(a) (2009). However, because the actions requested on appeal could result in a higher rating for PTSD, which, in turn, could result in eligibility for consideration of a TDIU on a schedular basis, the Board finds that the claim for a TDIU is inextricably intertwined with the claim for an higher initial rating for PTSD, and that the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Moreover, given the evidence of a possible worsening disability, the fact that the Veteran's PTSD is the Veteran's only service-connected disability, and that the Social Security Administration has found the Veteran to be unable to work due to psychiatric disability (although not specifically PTSD), the Board finds that the examiner should provide additional comment as to whether the Veteran's service-connected PTSD, alone, renders him unemployable. Accordingly, the RO should arrange for the Veteran to undergo VA examination, by a psychiatrist or psychologist, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of his claim for an higher initial rating for PTSD (as this claim, emanating from an original claim for benefits, will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claim for a higher rating for PTSD should include consideration of whether "staged" rating of the disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited to above) is appropriate. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, RO should arrange for the Veteran to undergo VA examination, by a psychologist or psychiatrist, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include psychological testing, if warranted) should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should specifically render findings with respect to the existence and extent (or frequency, as appropriate) of: memory loss, depressed mood, anxiety, panic attacks, sleep impairment, impaired judgment, speech, impulse control and/or thought processes, neglect of personal hygiene and appearance, suicidal and/or homicidal ideation, and delusions and/or hallucinations. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the Veteran's PTSD, and an explanation of what the score means. The examiner should also render an opinion, consistent with sound medical principles, as to whether-w without regard to any nonservice-connected disabilities or the Veteran's age-it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service- connected PTSD, alone, renders him unable to obtain or retain substantially gainful employment. In rendering the requested opinion, the physician should specifically consider and discuss the Veteran's SSA decision and records. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the claims for higher initial rating for PTSD and for a TDIU. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claims for higher initial rating and for a TDIU, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate each claim in light of all pertinent evidence and legal authority (to include, in connection with claim for a higher rating for PTSD, whether staged rating, pursuant to Fenderson (cited to above), is appropriate). 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs