Citation Nr: 1318910 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 10-00 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. 3. Entitlement to an initial rating in excess of 30 percent prior to December 13, 2011, and in excess of 50 percent therefrom, for PTSD. 4. Entitlement to an initial rating in excess of 10 percent for laryngospasms. REPRESENTATION Veteran represented by: San Diego County Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to May 1967. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case was subsequently transferred to the jurisdiction of the RO in San Diego, California. In February 2013, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record and is located in the Veteran's Virtual VA file only. The Board notes that there does not appear to be a waiver of review by the agency of original jurisdiction for VA treatment records and other literature received by VA since the last supplemental statement of the case. However, as claims that are being adjudicated below are being granted, and the remaining claims are being remanded, the Board finds there is no risk of prejudice to the Veteran from proceeding without the waiver. As discussed in further detail in the Remand section below, the Board has included the increased rating claims listed above as issues on appeal, despite the possible withdrawal of these claims by the Veteran. To avoid prejudice to the Veteran and afford him every consideration, the claims will remain in appellate status until properly withdrawn. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. The issues of entitlement to initial increased ratings for PTSD and laryngospasms are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The weight of the competent, probative evidence is in equipoise as to whether the Veteran's hypertension is etiologically related to his service-connected PTSD. 2. The weight of the competent, probative evidence is in equipoise as to whether the Veteran's sleep apnea is etiologically related to his service-connected PTSD. CONCLUSIONS OF LAW 1. The Veteran's hypertension has been caused or aggravated by his PTSD. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The Veteran's sleep apnea has been caused or aggravated by his PTSD. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance A discussion addressing whether VA's duties to notify and assist the Veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the Veteran in the development of his claims. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determinations reached in this case, no prejudice will result to the Veteran by the Board's consideration of the claims for hypertension and sleep apnea at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) evidence of a current disability (2) evidence of in service incurrence or aggravation of disease or injury; (3) 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 a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease process was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection is permitted not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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 allowance, as noted below, any further discussion of the amendment is unnecessary. The Veteran is service connected for PTSD. Additionally, he has been diagnosed with hypertension and sleep apnea, documented, for example, on VA examinations in March 2009 and March 2012, respectively. Hence, the remaining question is whether there is a relationship between these disorders and his service-connected PTSD. The evidence of record in this regard is conflicting. Regarding hypertension, on VA examination in March 2009, the examiner determined that the Veteran's hypertension was less likely as not caused by or a result of PTSD, and was not permanently aggravated by PTSD. The examiner found it was more likely than not that the current severity of the Veteran's hypertension was due to factors unrelated to PTSD. In the "Rationale" section, the examiner listed statements that the Veteran denied hypertension prior to military service, that he passed his enlistment physical examination, that he developed hypertension more than three years after separation from the military, and that no nexus was established between military service/PTSD and hypertension. On VA psychiatric examination in March 2009, the examiner found that it was plausible that the Veteran's hypertension, among other disorders, has been made worse by his PTSD, but that "this ultimate connection awaits medical input. An opinion may be rendered after that time." In a January 2013 statement, Dr. E, the Veteran's treating VA physician, stated that he initially evaluated the Veteran in December 2009, and has been treating him since that time every three months. Dr. E noted the following: he evaluated the Veteran's medical records; the Veteran had been treated for hypertension since 1990; and a review of the medical literature demonstrates that hypertension is more common in patients with PTSD and other anxiety disorders. Dr. E. cited specifically to this literature, and also provided abstracts of the articles. One abstract noted that heightened arousal due to PTSD is associated with an increased risk of hypertension. He concluded that, in his medical opinion, it is more likely than not that the Veteran's hypertension is associated with his service-connected PTSD. As for sleep apnea, on VA examination in March 2012, the examiner found that sleep apnea was less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the examiner stated that the Veteran has actual apnic episodes and snoring, which are causes of waking from sleep that differ from PTSD, and are not caused by the PTSD, but rather, by airway anatomy. In a September 2011 report, Dr. E. again stated that he has treated the Veteran since December 2009 at intervals of approximately three months. He noted that the Veteran is service-connected for PTSD, and also has obstructive sleep apnea. He stated that according to the medical literature, the prevalence of prospective sleep apnea in patients with PTSD is at least twice that of the general population. He concluded that, in his medical opinion, the Veteran's sleep apnea is more likely than not related to his PTSD. The record does not contain any other medical evidence concerning the etiology of the Veteran's hypertension or sleep apnea. 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 (2009). Based on consideration of the above, the Board finds that the weight of the competent, probative evidence is in equipoise as to whether the Veteran's hypertension and sleep apnea are etiologically related to his service-connected PTSD. The negative evidence in this case consists of the opinions of the March 2009 VA hypertension examiner, and the March 2012 sleep apnea examiner. The opinion of the March 2009 psychiatric examiner is a non-opinion, as the examiner was unable to reach a conclusion on the issue of secondary service connection. The March 2009 VA hypertension examiner offered essentially no rationale for the negative opinion concerning hypertension. None of the statements in the "Rationale" section actually explain why the Veteran's hypertension is not caused or aggravated by his PTSD, and an explanation is not otherwise documented in the report. This lessens the probative value of the report. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). The March 2012 VA examiner's report is confusing because the actual conclusion reached pertains to the issue of direct service connection, not secondary service connection, as the examiner checked the box stating, "the claimed condition was less likely than not (less than 50 percent probability) incurred in or cased by the claimed in-service injury, event, or illness." The selections pertaining to the issue of secondary service connection were left blank. As the rationale provided is inconsistent with the actual conclusion reached, this report too, is of diminished probative value. By contrast, the reports of Dr. E. are adequate for the purposes of adjudication. The applicable and appropriate history was noted, and there is no showing that the reports provide a substantially different picture of the Veteran's disability than the other evidence in the claims file. The medical examiner's findings were factually accurate and fully articulated, and valid medical analyses were applied. See Nieves-Rodriguez, 22 Vet. App. at 304. The opinions were based on a review of the Veteran's medical records, pertinent medical literature, and years of treating the Veteran. The Board acknowledges that the reports provided by Dr. E. are not flawless for purposes of VA adjudication. However, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, for the reasons described above, the Board concludes that there is at least a reasonable doubt as to whether the Veteran's current hypertension and sleep apnea are causally or etiologically related to his PTSD. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for hypertension and sleep apnea is warranted. ORDER Service connection for hypertension, secondary to PTSD, is granted. Service connection for sleep apnea, secondary to PTSD, is granted. REMAND After having carefully considered this matter, and for the following reasons, the Board believes that the appeal must be remanded for further development of the record. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective if it is (1) requested by the appellant or the appellant's authorized representative, (2) in writing, (3) includes the name of the Veteran, (4) provides the applicable VA file number, and (5) includes a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(a),(b)(1). Additionally, pursuant to 38 C.F.R. § 20.204(b)(1), if the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issues withdrawn from the appeal. In December 2009, the Veteran perfected an appeal regarding all of the issues listed on the title page of this decision. Thus, withdrawal must comply with regulatory requirements. Supplemental statements of the case (SSOCs) were issued in April and July 2012. In August 2012, in response to the July 2012 SSOC, the Veteran submitted a VA Form 9 wherein he checked a box indicating that he had read the SSOC, and was appealing the issues of hypertension and sleep apnea. The Board acknowledges that the Veteran's August 2012 VA Form 9 appears to limit his appeal to only the issues of hypertension and sleep apnea. However, he did not specifically withdraw the increased rating claims that were pending. This document does not comply with the requirements for withdrawal pursuant to 38 C.F.R. § 20.204(b)(1), which states that if the appeal involves multiple issues, the withdrawal must list the issues withdrawn from the appeal. See also DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (holding that withdrawal of a claim for VA disability benefits is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant); Kalman v. Principi 18 Vet. App. 522, 524-25 (2004) (holding the Board of Veterans Appeals (BVA) was clearly erroneous in finding that Veteran withdrew his appeal with respect to claims of service connection for psoriasis and obsessive-compulsive personality disorder, and claim for compensable evaluation for residuals of anterior-chest-wall trauma, based on letter in which Veteran stated that "the only issue remaining" was the claim for compensable evaluation, and on oral statements of Veteran or his representative at Board hearing.) As such, the RO must clarify with the Veteran whether he would like to continue his appeal as to the claims for initial increased ratings for PTSD and laryngospasms. If the Veteran intends to continue his appeal, a remand is required in order to afford the Veteran a VA examination to determine the current severity of these disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that, when a Veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). As for PTSD, in a November 2011 letter, the Veteran contended that he suffers from continuous panic attacks and depression affecting his ability to function independently and effectively, and that he has difficulty in adapting to stressful circumstances. In an April 2012 lay statement from the Veteran's wife, she stated that the Veteran used to always maintain his own activities of daily living and hygiene. Now, he sometimes won't shower or shave, or wear clean clothes. These symptoms indicate a worsening of the condition, and were not present on the last VA examination of December 2011. As for laryngospasms, in an April 2012 letter, the Veteran contended that the primary affect of this condition on him is the upper airway obstruction created by the closure of the folds of the larynx. He has requested that his disability be considered under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6520, based on forced expiratory volume in once second (FEV-1) measurements because this is the most disabling manifestation of his laryngospasms. In this regard, the Board notes the Veteran has medical training and is competent to describe these symptoms. On last VA examination of February 2012, no pulmonary testing to assess for upper airway obstruction was conducted. The Board finds that this testing should be conducted in order to fairly rate the disability. Finally, the record does not contain a waiver of RO jurisdiction with regard to records submitted since the last SSOC on these claims, and on remand, all evidence received since the July 2012 SSOC must be considered. See 38 C.F.R. §§ 19.37, 20.1304 (2012). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to clarify whether he intends to continue his appeal of the following claims: a. Entitlement to an initial rating in excess of 30 percent prior to December 13, 2011, and in excess of 50 percent therefrom, for PTSD. b. Entitlement to an initial rating in excess of 10 percent for laryngospasms. All correspondence concerning this matter should be fully documented in the record. If the Veteran clarifies that he wishes to continue these appeals, clarification regarding his desire for a Board hearing must also be conducted. 2. If, and only if, the Veteran desires to continue his appeal of the claim for PTSD, the RO should have the Veteran scheduled for a VA psychiatric examination to ascertain the current severity of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-PTSD. In accordance with the applicable worksheets for rating psychiatric disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of his PTSD. The examination report should include a complete discussion of the Veteran's subjective complaints, findings on mental status examination, and a multi-axial diagnosis with Global Assessment of Functioning (GAF) score. The examiner should assign a GAF score which reflects the severity of the Veteran's service-connected PTSD. The examiner should also discuss the extent to which the Veteran's PTSD affects his daily life and employment. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. If, and only if, the Veteran desires to continue his appeal of the claim for laryngospasms, the RO should have the Veteran scheduled a VA respiratory examination to ascertain the current severity and manifestations of his service-connected laryngospasms. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-laryngospasms. In accordance with the applicable worksheets for rating respiratory disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of his laryngospasms. As deemed appropriate by the examiner, and given the Veteran's contention that primary affect of this condition on him is upper airway obstruction, pulmonary function testing to assess for upper airway obstruction should be conducted. The examiner should report all signs and symptoms necessary for rating the Veteran's disability. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing all indicated development, the RO then should readjudicate any claim remaining on appeal in light of all the evidence of record including any received since the issuance of the July 2012 SSOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs