Citation Nr: 1334927 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-37 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service connected posttraumatic stress disorder (PTSD) and diabetes mellitus, type II. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected PTSD and diabetes mellitus, type II. 3. Entitlement to service connection for hypertension, to include as secondary to service connected PTSD and diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from September 1966 to April 1969. This case came before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This matter was remanded by the Board in August 2011 for further development. As the Board has remanded the Veteran's claim, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2011. The issue of entitlement to service connection for hypertension 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. Sleep apnea did not begin in service and is not shown by competent evidence to be causally related to service, or service connected disability. 2. Erectile dysfunction did not begin in service and is not shown by competent evidence to be causally related to service, or service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2013). 2. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of a number of letters dated since before the current claim on appeal, and most recently in June 2009. These documents provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific criteria to substantiate his claims for service connection. The RO has provided adequate notice of how effective dates are assigned. The claim was subsequently readjudicated most recently in an August 2012 supplemental statement of the case (SSOC). To the extent the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in April 2011, in which he presented oral argument in support of his claim for service connection for sleep apnea and erectile dysfunction. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ specifically sought to identify any pertinent evidence not currently associated with the claims, and the Veteran volunteered his symptoms since service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The claimant also was provided the opportunity to present pertinent evidence. The record contains service treatment records, records of medical treatment received from VA, and the report of VA examination addressing the material elements of the erectile dysfunction claim. The Veteran did not undergo a VA examination germane to his sleep apnea claim, but such examination is not required since there is no indication from a competent source that the Veteran's claimed sleep apnea disability could be related to service, or service connected disability. Without such an indication, the Board may consider the medical records already in the file without requiring a VA examination for sleep apnea. As noted above, this case was previously before the Board in August 2011. In the August 2011 remand, the Board noted that service connect for diabetes had occurred since the appealed decisions had been rendered, and directed that the claims be readjudicated by the RO in light of this. Then, if the readjudication did not result in a complete grant of all benefits sought by the Veteran, the Veteran and his representative were to be provided an SSOC. As an SSOC was issued in August 2012, the directive of the August 2011 remand has thus been accomplished. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claims, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 at 1377 (Fed. Cir. 2007) (holding that "(w)hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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."). Sleep Apnea The Veteran's service treatment records are completely silent as to any complaints of or treatment for sleep apnea. His April 1969 separation examination listed his nose, sinuses, mouth, and throat as normal. There are no other service treatment records related to sleep apnea. This is strong evidence that as of April 1969, there was no sleep apnea. VA treatment records dated in April 2005 reflect that the Veteran was followed for obstructive sleep apnea, but none of the records indicate it was thought to be related to service or service connected disability. With the onset of the claimed condition decades after service, and no competent evidence linking it to service, a basis upon which to establish service connection has not been presented. In this regard, it is noted that the Veteran contends his service connected PTSD and diabetes has caused or aggravated the sleep apnea. This contention, however, is beyond his competency, as there is nothing in the record reflecting he possesses the medical expertise to establish the relationship he is asserting. Accordingly, the contention does not provide a basis for the award of the benefit. Erectile Dysfunction VA treatment records dated in August 2004 reflect that the Veteran was assessed with erectile dysfunction, which a February 2009 VA examiner noted was caused by low testosterone. The examiner also noted that the complaint pre-dated the use of medication used to treat PTSD, which could cause the problem, and therefore, the medication's use was not linked to the complaint. There is no indication that low testosterone was present in service, or otherwise is linked to service. With ED first noted years after service, and attributed to low testosterone, which itself has not been linked to service, a basis upon which to establish service connection for ED has not been presented. In reaching this conclusion the Board notes the Veteran contends that his service connected PTSD and diabetes, has caused or aggravated his erectile dysfunction. However, since in his case, the claimed condition has been attributed to low testosterone, this theory of entitlement does not support an award of benefits. ORDER Service connection for sleep apnea is denied. Service connection for erectile dysfunction is denied. REMAND A letter from a VA doctor dated in January 2005 reflects that the VA doctor opined that hypertension is more likely than not caused or aggravated by PTSD. In February 2009, a VA examiner opined that hypertension is not caused by PTSD, and an April 2011 letter from a VA doctor notes that hypertension is affected by PTSD and diabetes. A more definitive opinion should be sought. Lastly, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain any records relating to the Veteran's treatment for hypertension from the Shreveport VA Medical Center dated since March 2012 and incorporate them into the Veteran's claims file. 2. After the above has been completed to the extent possible, schedule the Veteran for a VA examination to ascertain whether the Veteran's hypertension is related to service-connected PTSD and/or diabetes mellitus, type II. The claims file should be reviewed by the examiner in conjunction with the examination, and specifically the examiner should provide an opinion as to whether it is at least as likely as not that hypertension is caused OR aggravated by service-connected PTSD and/or diabetes mellitus, type II. The reasoning for the opinions expressed should be provided. In this regard, aggravation means a permanent increase in severity of the condition beyond its natural progression. 3. After completion of the foregoing, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs