Citation Nr: 1318601 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 10-22 537A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for pes planus. 3. Entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 60 percent disabling prior to December 2, 2011. 4. Entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 80 percent disabling from December 2, 2011. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from July 1979 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs Regional Office (RO) in Atlanta, Georgia. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a total disability rating based on individual unemployability (TDIU) in initial rating claims when the issue of unemployability is raised by the record. The Veteran has raised the issue of entitlement to TDIU. Thus, under Rice, the Board has jurisdiction over the Veteran's TDIU claim, which for the purpose of clarity is listed as a separate issue on the title page. In May 2013, the Veteran testified at a video hearing before the undersigned Veterans Law Judge. The record also reflects that evidence has been submitted directly to the Board, accompanied by a waiver of having this evidence initially considered by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving all doubt in favor sleep apnea had its onset in service. 2. Resolving all doubt in favor of the Veteran, bilateral pes planus had its onset in service. 3. In May 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 60 percent disabling prior to December 2, 2011. 4. In May 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 80 percent disabling from December 2, 2011. CONCLUSIONS OF LAW 1. Sleep apnea was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Bilateral pes planus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002)38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 60 percent disabling prior to December 2, 2011. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 4. The criteria for withdrawal of a Substantive Appeal have been met with respect to the issue of entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 80 percent disabling from December 2, 2011. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this decision, the Board grants service connection for bilateral pes planus and sleep apnea. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Criteria & Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Bilateral Pes Planus The Veteran testified at the May 2013 Board hearing that he has had flat feet since service. The Board finds the Veteran's testimony to be competent and credible. Service treatment records dated in September 1982 reflect that the Veteran complained of a swollen left foot. In June 1996, the Veteran complained of left foot numbness. VA treatment records dated in January 2005 reflect that the Veteran was assessed with pes planus. Private treatment records from Dr. Gabbay dated in May 2007 reflect that the Veteran complained of left foot pain for a long time. X-ray findings revealed some arthritic changes to the posterior subtalar joint facet, as well as some midtarsal joint. Dr. Gabbay stated that this appeared to be wear-and-tear arthritis from years of being on his feet, probably through the Army. After a careful review of the claims folder, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's bilateral pes planus had its onset service. As noted above, the Veteran has competently and credibly reported bilateral pes planus since service and service treatment records included instances of left foot swelling and pain. Moreover, after resolving all doubt in the Veteran's favor, the Board finds that the record supports a diagnosis of bilateral pes planus that is related to service. In this regard, the Board notes that the Veteran has been diagnosed with pes planus and Dr. Gabbay opined in May 2007 that the Veteran's foot problems are probably due to service. Given that the balance of positive and negative evidence is in relative equipoise, the Board finds that any doubt regarding the diagnosis of bilateral pes planus is resolved in the Veteran's favor. Service connection is warranted. The appeal is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this decision, the Board grants service connection for bilateral pes planus. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Sleep Apnea The Veteran has reported sleep apnea since service. The Veteran's wife has stated that she first noticed the Veteran's sleep problems in the mid to late 1990's. She stated that he would wake up choking and gasping for air. Although there are no service treatment records related to sleep apnea, the Board finds the Veteran and his wife's statements to be competent and credible. Private treatment records from Dr. Lesch dated in May 2007 reflect that the Veteran complained of difficulty sleeping over the last 10 to 15 years. The examiner diagnosed probably obstructive sleep apnea syndrome. In April 2010, Dr. Lesch opined that the Veteran's current obstructive sleep apnea is as likely as not caused by or related to his military service. After a careful review of the claims folder, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's sleep apnea had its onset in service. As noted above, the Veteran and his wife have competently and credibly reported sleep apnea since service. Moreover, after resolving all doubt in the Veteran's favor, the Board finds that the record supports a diagnosis of sleep apnea that is related to service. In this regard the Board notes that the Veteran has been diagnosed with sleep apnea and Dr. Lesch opined in April 2010 that the Veteran's sleep apnea is due to service. Given that the balance of positive and negative evidence is in relative equipoise, the Board finds that any doubt regarding the diagnosis of sleep apnea is resolved in the Veteran's favor. Service connection is warranted. The appeal is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Increased Initial Ratings for Hypertensive Kidney Disease with Hypertension Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. At the May 2013 Board hearing, the Veteran withdrew his appeal of entitlement to increased initial ratings for hypertensive kidney disease with hypertension. Accordingly, there remain no allegations of errors of fact or law for appellate consideration with respect to the issues of entitlement to increased initial ratings for hypertensive kidney disease with hypertension, rated 60 percent disabling prior to December 2, 2011 and 80 percent disabling from December 2, 2011. Accordingly, the Board does not have jurisdiction to review the appeal on these matters, and the issues of entitlement to increased initial ratings for hypertensive kidney disease with hypertension, rated 60 percent disabling prior to December 2, 2011 and 80 percent disabling from December 2, 2011, is dismissed. ORDER Service connection for bilateral pes planus is granted. Service connection for sleep apnea is granted. The appeal of entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 60 percent disabling prior to December 2, 2011, is dismissed. The appeal of entitlement to an increased initial rating for hypertensive kidney disease with hypertension, rated 80 percent disabling from December 2, 2011, is dismissed. REMAND As noted in the introduction, the issue of entitlement to TDIU has been raised by the record. As TDIU is a derivative claim to a claim for a higher initial rating, a claim for a TDIU has also been pending since the Veteran appealed the initial rating assigned for his service-connected hypertensive kidney disease with hypertension. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's informal claim of service connection for arthritis of the hands, raised at the February 2013 hearing, is inextricably intertwined with his TDIU claim. Although generally the Board refers claims that have not been considered by the RO to the agency of original jurisdiction for initial consideration, here the adjudication of the raised service connection claim may impact the Board's adjudication of the total rating issue. As such, the Board finds that he should be examined by VA and the VA examination report should include a medical opinion addressing whether it is related to or had its onset in service. The Board also finds that resolution of the Veteran's TDIU claim requires a VA opinion addressing whether the disability is the level of occupational impairment from the Veteran's service-connected disabilities. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service hands symptoms as well as the impact of his service-connected disabilities, to include in the aggregate, on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as to the service connection claim for a bilateral hand disability, to include arthritis of the hands, including on a secondary basis. The Veteran should be provided an appropriate amount of time to respond to this notification. This notification should be associated with the claims folder. 3. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his arthritis of the hands and service-connected disabilities. After securing the necessary release, request any relevant records identified that are not duplicates of those already contained in the claims file. The RO must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Additionally, obtain relevant records for the Veteran from the Atlanta VA Medical Center dated since January 2005. If any requested records are not available the Veteran should be notified of such. 4. Following the completion of the development above to the extent possible, schedule the Veteran for a VA examination. The claims file must be reviewed by the examiner in conjunction with the examination. Following examination of the Veteran and review of the claims folder and any relevant electronic VA treatment records, the examiner should respond to the following: Is it at least as likely as not that the Veteran has a hand disability, to specifically include arthritis of the hands is related to or had its onset in service. If not, is it at least as likely as not that the Veteran's arthritis of the hands was caused or aggravated (permanently increased in severity) by the Veteran's chronic hypertensive kidney disease with hypertension? The examiner must provide the reasoning for the opinions rendered. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. After the above actions, send the claims file to an appropriate VA examiner, if possible a VA vocational specialist, for a medical opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The claims folder, and any newly associated evidence, must be made available to and reviewed by the examiner in conjunction with the examination report. All findings, along with a fully articulated medical rationale for any opinion expressed should be set forth in the examination report. 6. Then adjudicate the Veteran's claim of service connection for right and left hand disability and thereafter consider his TDIU claim. If the benefits sought remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant 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 Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs