Citation Nr: 1439538	
Decision Date: 09/05/14    Archive Date: 09/09/14

DOCKET NO.  11-00 216	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for hypertension, and, if so, whether service connection is warranted.  

2.  Entitlement to service connection for a heart disability, to include as secondary to hypertension. 

3.  Entitlement to service connection for sleep apnea. 

4.  Entitlement to restoration of a 20 percent rating for an L3-L4 disc bulge, residuals of trauma, from August 1, 1992.

5.  Entitlement to a rating in excess of 20 percent for an L3-L4 disc bulge, residuals of trauma.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel


INTRODUCTION

The Veteran served on active duty from December 1983 to December 1987 and May 1989 to July 1992. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO).  

A medical expert opinion from the Veterans Health Administration (VHA) in accordance with VHA Directive 2010-044 was received in June 2014.  The Veteran was provided with a copy of this opinion in June 2014 and offered the opportunity to respond.  He submitted a response to the VHA opinion in July 2014. 

As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files.  A review of the documents in Virtual VA reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.  Further, the Veteran's VBMS file does not contain any documents at this time.  

The issue of entitlement to a rating in excess of 20 percent for an L3-L4 disc bulge, residuals of trauma is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claims herein decided have been accomplished.

2.  Service connection for hypertension was denied in a November 1992 rating decision to which the Veteran was notified in December 1992; the Veteran did not submit a notice of disagreement with respect to this denial. 

3.  Evidence added to the record since the November 1992 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim for service connection for hypertension.  

4.  Sleep apnea is not shown during service and neither hypertension nor a heart disability is shown during service or within one year of separation from service.  

5.  The preponderance of the evidence is against a conclusion that hypertension, a heart disability, or sleep apnea is causally or etiologically related to any in-service symptomatology or pathology.  

6.  The adjudications by the RO reducing the rating for the service-connected back disability from 20 to 10 percent reflect that the RO failed to consider, and provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions.


CONCLUSIONS OF LAW

1.  The November 1992 rating decision that denied service connection for hypertension is final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992).

2.  New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).

3.  The criteria for service connection for hypertension are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

4.  The criteria for service connection for hypertension a heart disability are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

5.  The criteria for service connection for sleep apnea are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

6.  As the RO's reduction of the rating for an L3-L4 disc bulge, residuals of trauma, from 20 to 10 percent, effective March 1, 2011, was not in accordance with law, the criteria for restoration of the 20 percent rating are met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 3.344 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant of any information and evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.  

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for hypertension is, to this limited extent, completely favorable, no further action with respect to this matter is required to comply with the VCAA and implementing regulations pertinent to claims to reopen, to include as interpreted by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006).  Similarly, given the favorable disposition of the claim for restoration of a 20 percent rating for the service connected back disability, no further action with respect to this matter is required to comply with the VCAA and implementing regulations.   

With respect to the reopened claim for service connection for hypertension, as well as the claims for service connection for a heart disability and sleep apnea, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, May and September 2009 letters, sent prior to the initial unfavorable decision issued in October 2009, advised the Veteran of the evidence and information necessary to substantiate these claims as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, these letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  

Relevant to the duty to assist, the Veteran's service treatment records (STRs) and his post-service VA treatment records have been obtained.  The record also contains opinions submitted on his behalf by a private physician.  Additionally, the aforementioned VHA opinion received in June 2014 addressed the matters of whether the Veteran's hypertension, a heart disability, and sleep apnea are etiologically related to service.  

In a June 2014 presentation, the Veteran's representative argued that the VHA physician opinion is inadequate for failure to specifically discuss the favorable opinion of Dr. C.B. as well as failing to address the issue of "direct service connection."  A July 2014 statement from the Veteran also alleges inadequacy with the VHA opinion.  In general, the Veteran argues that the VHA physician failed to take into account lay reports of symptomatology which were not recorded in the STRs, did not reference any medical literature and placed undue weight on the role of obesity in the development of his hypertension and sleep apnea.

A close review of the VHA opinion report first reflects that this examiner specifically cited the criteria necessary to make a formal diagnosis for hypertension and sleep apnea and identified the known risk factors for developing both diseases.  With respect to the hypertension claim, the VHA examiner specifically documented for the record the Veteran's history of blood pressure readings in service and thereafter as well as specific reference to the risk factors for developing hypertension.  Based upon this specific evidence, the examiner offered a clear opinion supported by a rationale.  Similarly, the VHA examiner identified the criteria necessary for supporting a diagnosis of obstructive sleep apnea and, based on those criteria and the evidence in the claims folder, offered a clear opinion supported by a rationale.  This examiner also discussed the medical significance of snoring in terms of diagnosing obstructive sleep apnea.

Based upon a review of the record in its entirety, the Board finds that the VHA opinion is sufficient to render an equitable resolution with respect to the claims for service connection at issue.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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").  While the Veteran has alleged factual inaccuracies (e.g., failing to consider his lay observations of his snoring, apneic events and daytime somnolence in service), the Board has the obligation to determine which facts have been established to form the factual foundation for a medical opinion - which will be addressed below.  As determined below, the Board finds that the VHA examiner's opinion is premised on an accurate factual predicate as determined by the Board.  

Thus, the Board finds that VA has fully satisfied the duty to assist with respect to the claims adjudicated herein.  In the circumstances of this case, additional efforts to assist or notify the Veteran with respect to the claims adjudicated in this decision in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  With respect to the issues adjudicated  herein, VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claims decided below.    

II.  Analysis

A.  New and Material

Service connection for hypertension was denied in a November 1992 rating decision to which the Veteran was notified by letter in December 1992.  As the Veteran did not file a notice of disagreement with this denial of service connection for hypertension, and new and material evidence was not received during the pertinent appeal period, the November 1992 rating decision is final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).  

Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence means existing 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).

The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id.

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  Here, the only final decision addressing the issue of entitlement to service connection for hypertension on any basis is the November 1992 rating decision.  As such, the claim for service connection for hypertension may only be reopened if new and material evidence has been received since the November 1992 rating decision.

The RO, in a November 2010 statement of the case (SOC), found that new and material evidence had been received to reopen the claim for service connection for hypertension but made the opposite conclusion in an April 2011 "SOC."  Irrespective of any conclusion by the RO in this regard, the Board must made an independent determination as to whether new and material evidence has been received.   Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

The evidence and information of record at the time of the November 1992 rating decision included the STRs that did not reflect a diagnosis of hypertension and the reports from a September 1992 VA general medical examination, at which time hypertension was not diagnosed.  During the examination, the Veteran also denied having a history of hypertension.  Service connection for hypertension was ultimately denied in the November 1992 rating decision based on a conclusion that the condition was not "shown by the evidence of record."  

Evidence received since the November 1992 rating decision includes April and August 2009 statements submitted by a private physician indicating that the Veteran had high blood pressure readings during service and continuous high blood pressure readings since service and that otherwise found that the Veteran's current hypertension was the result of service.  Thus, as the basis of the original final denial was the lack of any evidence of hypertension, the April 2009 and August 2009 opinions, the credibility of which must be presumed, relate to a fact necessary to substantiate the claim for service connection for hypertension, and therefore represents new and material evidence.  Justus supra.  In short therefore, sufficient evidence has been received to reopen the claim for service connection for hypertension.  38 C.F.R. § 3.156(a); Shade, supra.  

Regarding this reopened claim, the Board observes that the RO has considered the claim on the merits in the November 2010 SOC (although stated an opposite conclusion in an April 2011 "SOC").  Additionally, the Veteran has provided medical opinion supportive of his claim, and has presented argument in July 2014 directed towards the merits of his claim - rather than a reopening of his claim.  Under these circumstances, the Board finds that it would not be prejudicial to the Veteran to decide this case without remanding the reopened case to the RO for initial review.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  See also Hickson v. Shinseki, 23 Vet. App. 394 (2010) (noting that, when a Board reopens a claim after the RO has denied reopening the same claim, the matter must generally be returned to the RO for consideration of the merits).

Thus, Board will conduct a de novo adjudication of the service connection claim for hypertension below.  

B.  Service Connection

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "[i]t is clear that 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.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Direct service connection may not be granted without competent evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  See also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including cardiovascular disabilities, 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.  

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.  The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

VA defines hypertension as being present if the diastolic blood pressure is 90 mm Hg or more or the systolic pressure is 140 mm Hg or more, or if both are present.  See Veteran Benefits Administration (VBA) Training Letter 00-07 (July 17, 2000) (citing the Sixth Report of the Joint National Committee on Prevention, Detection, Evaluation, and Treatment of High Blood Pressure (1997) as defining Stage 1 hypertension as 140 mm Hg to 159 mm Hg systolic or 90 mm Hg to 99 mm Hg diastolic).  

As noted in VBA Training Letter 00-07, VA has an existing policy that a diagnosis of hypertension requires "multiple readings" - 2 or more readings on at least 3 days - because multiple readings "is a standard requirement for diagnosis and treatment.  If not, the diagnosis of hypertension is suspect."  The criteria of 38 C.F.R. § 4.104, Diagnostic Code 7101 instructs that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).  

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).  Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

The Veteran's STRs do not reflect diagnoses of hypertension, sleep apnea or a heart disability.  Review of the multiple blood pressure readings during service reveals no systolic readings of 140 or greater, and the highest systolic reading during service was 136 in March 1991.  The highest diastolic reading during service was 90, to include October 22, 1988 (annual examination conducted by Dr. V), March 29, 1991, October 30, 1991, and November 21, 1991.  

During this interval, the Veteran also had blood pressure readings of 120/70 (addition to October 22, 1988 examination on January 22, 1989), 126/72 (March 27, 1991), 132/82 (April 4, 1991), 124/80 (April 12, 1991), 124/87 (May 3, 1991), 118/74 (May 31, 1991), 114/76 (June 5, 1991), 112/76 (July 3, 1991), 120/84 (July 12, 1991), 112/70 (July 31, 1991), 100/70, 114/88 and 112/86 (August 6, 1991), 120/70 (August 21, 1991), 120/70 (August 27, 1991), 110/76 (October 12, 1991) and 128/72 (September 18, 1991).  The last two blood pressure readings taken were 122/80 (January 11, 1992) and 124/80 (May 1992).  He reported smoking approximately 1/2 to 1 pack of cigarettes per day.

On a medical history completed in September 1990 conducted for purposes of medically qualifying as an air traffic controller (ATC), the Veteran described himself in good health and taking no medications.  He denied a history of high or low blood pressure, palpitation or pounding of heart, heart trouble and frequent trouble sleeping.  He had a blood pressure reading of 130/70.

On a medical history completed in June 1991 during service, the Veteran reported no heart trouble or frequent trouble sleeping and answered "no" and "don't know" as to whether he had high or low blood pressure.  He otherwise described himself in good health.  Notably, the Veteran had a military occupational specialty (MOS) as an air traffic controller at that time.

After service, a September 1992 VA general medical examination did not result in a diagnosis of hypertension.  Moreover, during this examination, the Veteran also denied having a history of hypertension.

Thereafter, the available records do not reflect any treatment for hypertension, sleep apnea or heart disease within one decade after service discharge.  A December 2004 VA clinic record, which noted that the Veteran was not on any medications, reflected a blood pressure reading of 127/74.  The Veteran denied a history of high blood pressure at that time.

In pertinent part, the Veteran was admitted to a private hospital in June 2005 due to complaint of left shoulder pain, shortness of breath, chest pressure and irregular palpitation feelings in his chest.  He was diagnosed with atrial fibrillation, angina, obesity, depression and tobacco use disorder.  He was also recommended for an evaluation for sleep apnea.  A July 2006 sleep study resulted in a diagnosis of obstructive sleep apnea.  A January 2007 clinic record recorded the Veteran's complaints of feeling tired and sleepy during the daytime with difficulty falling and maintaining sleep.

In a statement received in May 2009, the Veteran argued that his blood pressure reading of 130/90 in service was indicative of the onset of hypertension, and that his resulting heart condition and sleep apnea were "synergistic and associated."

The record reflects private medical opinions dated in April and August 2009, from Dr. C.B., providing a positive nexus between the Veteran's current hypertension and his active military service.  After review of the STRs and statements by the Veteran and his spouse, Dr. C.B. found that the Veteran had high blood pressure readings during service and continuous high blood pressure readings since service.  In support of this opinion, Dr. C.B. noted that the Veteran entered service fit for duty and had documented blood pressure readings of 130/90, 120/90 and 136/90 which met the definition of hypertension - a diastolic blood pressure of 90-104 mmhg according to a cited medical treatise.  It was also noted that, in June 1991, the Veteran reported suspected hypertension which was not addressed.  Dr. C.B. also asserted that the Veteran has had continuous high blood pressures since service without citing any specific examples.

With respect to cardiac problems, Dr. C.B. cited to a medical treatise source indicating that long-standing hypertension is a well-known cause of cardiac disease which could be asymptomatic for the first 15-20 years even though it progressively damaged the cardiovascular system.  Dr. C.B. posited that the Veteran's medical records did not support a more plausible etiology for his current enlarged heart, low ejection fraction, atrial fibrillation and uncontrolled hypertension than his service time hypertension.

Dr. C.B. also opined that the Veteran's current obstructive sleep apnea had its onset in service.  This opinion was based, in part, on the following statement from the Veteran:

the onset of apnea was probably during period of service as I was occasionally awakened by various members of the crew for either "snoring loudly" or being checked on because I appeared to be "gasping for breath" and I seemed to be tired quite a bit.  However, this type of issue was never paid attention to in the Navy due to everyone's random sleep patterns and watch rotations.  I was prescribed the BIPAP due to cardiac/BP issues and after formal sleep studies.  West Volusia Medical Associates.

The opinion of Dr. Bash was also based, in part, on a statement from the Veteran's spouse which stated that the Veteran had always been a snorer since she met him in September 1984 with this problem progressing over the years.  She stated that "I believe" she noticed him holding his breathe while snoring when living in Delaware from 1985-87 because she could remember nudging him to breath from time to time, but she stated that:

I am not able to pinpoint the time much more than that from that period of time - just that it was sometime between 1985-1987, when we first lived out on our own together.  In terms of specific observations that I remember with greater clarity, this is the earliest time frame I can pinpoint with certainty:

In the spring of 1992, I was expecting twins.  One of the issues I had trouble with was frequent, severe heartburn, which was really bad at night and kept me awake.  I would take some liquid Mylanta and then go back to bed in a semi-reclined position and wait for the heartburn to subside so I could go to sleep.  Other than reading, there was not much for me to do but watch [the Veteran] sleep.  I would keep track of the number of times he would stop breathing in an hour and sometimes it would go on for long enough that I would jostle him to make him start breathing again, but it happened so often that there would be no way to jostle him every time because he would have woken up completely.  I can remember trying the trick of putting a tennis ball inside his sleep shirt so that he would not sleep on his back (this did not work) during this time frame as well.  We were living in Duncanville, Texas, and he was in the Navy working in Grand Prairie at that time as an air traffic controller.

The Veteran's spouse then stated that she was "pretty sure" that the Veteran's stopped breathing was not a new phenomenon and that he had been suffering with this problem for "some time prior to spring 1992" but that, due to the difficulty with pregnancy with insomnia, she had a clear memory of the apneic events in 1992.

According to Dr. C.B., the Veteran's sleep apnea was likely secondary to his service time experiences as his records did not contain a more likely etiology.  Otherwise, Dr. C.B. stated that the Veteran's medical records did not support another more likely origin for his sleep apnea other than his sleeping and snoring problems during service-time.

The record also reflects a statement received in January 2011 from a service member who was stationed with the Veteran in the late 1980's.  This witness recalled that the Veteran "snored a bit louder than the rest of us and would make choking and gagging noises."  He also had observed that the Veteran always seemed tired and lacked energy.  At the time, he professed that he was not aware of sleep apnea but, in essence, feels that the Veteran's symptoms demonstrated during service were manifestations of sleep apnea. 

With respect to the history set forth above, the VHA physician who provided the June 2014 opinion, while not specifically listing such history, noted that she had reviewed the Veteran's three volume claims file.  She did record more than 20 in-service and post service blood pressure readings; the Veteran's history of weight gain and BMI in service and thereafter; the fact that a November 8, 2004, electrocardiogram was normal; that a December 2, 2004, clinical note reflected blood pressure of 127/74, did not mention hypertension or that the Veteran was taking blood pressure medication, and noted that the Veteran was a smoker and weighed 339 pounds; and that an April 6, 2005, clinical note indicated that the Veteran's blood pressure was 138/75, that he was not taking blood pressure medication, and that he weighed 358 pounds.  

The VHA physician described the criteria and methodology for diagnosing obstructive sleep apnea.  In particular, the examiner indicated that not all snoring patients have obstructive sleep apnea and that snoring does not define sleep apnea.  It was noted that sleep apnea had to be confirmed by polysomnography.  The VHA examiner found it to be "highly unlikely (<50 percent)" that the Veteran's obstructive sleep apnea had its onset during service or was causally related to events therein.  Instead, the physician found that the condition was due to the Veteran's obesity [a condition for which service connection was denied in the November 1992 rating decision on the basis of it being a constitutional or developmental abnormality, and therefore not a "disease" for which service connection can be granted]  In this regard, the VHA physician noted that the strongest and most important risk factor for obstructive sleep apnea was obesity, followed by less important risk factors of age and being of the male gender.    

It was also determined by the VHA physician that it was "highly unlikely (<50 percent)" that the Veteran's hypertension had its onset in service or was caused by events therein.  As a rationale for her conclusion, the physician highlighted the fact that obesity and advancing age were causes or risk factors for primary hypertension and that obstructive sleep apnea was a cause of secondary hypertension.  She also noted that there was no evidence that the Veteran had "persistent elevated blood pressure" during service, therefore meaning there was no evidence of hypertension during service.  She found that the Veteran's current hypertension was greatly contributed to by his "morbid obesity," and also noted [as risk factors or causes of hypertension] the fact that the Veteran is now middle aged and has obstructive sleep apnea.  

As a final conclusion, the VA physician found that it was "highly unlikely (<50 percent)" that the Veteran's current heart disorder had its onset in service or was causally related to events in service.  The rationale included the fact that there was no evidence of atrial fibrillation in service; a September 1992 electrocardiogram [conducted within a few months of service] was negative for atrial fibrillation; and that an electrocardiogram as late as 12 years after service in November 2004 was negative for atrial fibrillation.  The examiner noted that hypertensive heart disease and coronary heart disease were the most important underlying disorders in patients with atrial fibrillation, and that obstructive sleep apnea can also be a factor contributing to the condition.  She emphasized that, if there were any contributing factors, it was the Veteran's morbid obesity which also results in obstructive sleep apnea and hypertension.  

Applying the pertinent criteria to the facts set forth above, the Board acknowledges that competing competent evidence has been presented with respect to the service connection claims at hand.  In this regard, 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, 470-471 (1993).  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). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993).

A.  Hypertension

At the outset, the Board first finds that both competing medical examiners have sufficient competence to address the hypertension issue at hand.  The VHA physician is deemed qualified in internal medicine while Dr. C.B. reports being sub-certified in the area of hypertension.  The Board also observes that both examiners report reviewing the contents of the claims folder.

The Board next notes that the VHA examiner and Dr. C.B. generally agree that the diastolic reading supporting a diagnosis of hypertension is 90 mmhg or higher, which is consistent with VA's policy encapsulated in VBA Training Letter 00-07 and DC 7101.  Dr. C.B. has cited a definition of a systolic reading of 140 mmhg as demonstrating "borderline" systolic hypertension.

The opinion by Dr. C.B., however, does not clarify what standard he utilizes in arriving at a diagnosis of hypertension in service other than referring to sustained high blood pressures in service and thereafter.  The VHA examiner was directed by the Board to utilize VA's standard announced in VBA Training Letter 00-07.

Here, there is no dispute of fact by either Dr. C.B. or the VHA physician that the Veteran was not formally diagnosed with hypertension in service.  There is, however, a dispute of fact as to whether - in retrospect - the Veteran's documented blood pressure readings in service and thereafter supported a hypertension diagnosis.

The initial medical opinion in favor of the claim, by Dr. C.B. in April 2009, asserts that, by reference to one blood pressure reading of 130/90 in September 1990, "[i]t is apparent" that the Veteran had diastolic hypertension according to the definition of hypertension.  As noted by VBA Training Letter 00-07, a diagnosis of hypertension on one reading alone would be "suspect."  

Notably, Dr. C.B. actually references an October 1988 blood pressure reading taken by Dr. V. during a formal military examination.  See Dr. C.B.s reference to page 19 of 28 in the opinion report.  Notably, this examination report was revised in January 1989 the blood pressure appears to be recorded as 120/70.

In a revised opinion dated August 2009, Dr. C.B. further supported his opinion by referencing "several" high blood pressure readings of 120/90 and 136/90, and by reference to the Veteran's suspicion of having hypertension, as establishing that the Veteran had hypertension in service and "has had continuous HTN problems since service."  Dr. C.B. does not cite any specific evidence to support the conclusion of continuous hypertension since service.  Notably, Dr. C.B. also asserts that the Veteran demonstrated both diastolic and systolic hypertension in service, but does not cite any specific example of systolic blood pressure of 140 mmhg or more which would establish "borderline" systolic hypertension according to the definition he cited in the opinion report.

The Board further notes that, in a round-about way, Dr. C.B. concludes that the Veteran must have manifested hypertension in service as this would be the only plausible medical explanation for him to subsequently develop heart disease and obstructive sleep apnea.

On the other hand, the VHA examiner concluded that the Veteran did not manifest hypertension in service or for many years thereafter.  To support this opinion, the VHA documented blood pressure readings during service, which included the 3 elevated readings discussed above, as well as readings contemporaneous in time from service discharge.  This examiner found that there was no evidence that the Veteran had persistent elevated blood pressure during his service years and, therefore, there was no in service evidence of hypertension.  This examiner also noted that the Veteran's current age, morbid obesity and obstructive sleep apnea were recognized risk factors for developing hypertension, and that obesity.

Overall, the Board finds that the opinion from the VHA examiner greatly outweighs the opinion of Dr. C.B.  In this respect, the VHA examiner clearly reviewed the relevant blood pressure readings in service as documented in the examination report while Dr. C.B. references only 3 isolated readings without reference to multiple blood pressure readings in between.  

The Board, while not qualified to provide opinions on medical matters, is competent to determine whether a recorded blood pressure reading taken in service meets the diagnosis threshold agreed upon by Dr. C.B. and the VHA examiner.  Here, the Veteran had three diastolic readings of 90 mmhg in service.

Following the diastolic reading of 90 on October 22, 1988, the Veteran had a blood pressure reading of 120/70 on January 22, 1989.

Following the diastolic reading of 90 on March 29, 1991, the Veteran had blood pressure readings of 132/82 (April 4, 1991), 124/80 (April 12, 1991), 124/87 (May 3, 1991), 118/74 (May 31, 1991), 114/76 (June 5, 1991), 112/76 (July 3, 1991), 120/84 (July 12, 1991), 112/70 (July 31, 1991), 100/70, 114/88 and 112/86 (August 6, 1991), 120/70 (August 21, 1991), 120/70 (August 27, 1991) and 110/76 (October 12, 1991).  Two days prior to March 29, 1991, the Veteran had a blood pressure reading of 126/72.  

Approximately one week prior to the diastolic reading of 90 on October 30, 1991, the Veteran had blood pressure reading of 110/76.  

Following the diastolic pressure of 90 on November 21, 1991, the Veteran had blood pressure readings of 122/80 (January 11, 1992), 124/80 (May 1992), 110/88 (September 29, 1992) and 127/74 (December 2, 2004).

Given these documented facts, the VHA examiner's opinion that the Veteran did not manifest hypertension in service or until many years thereafter is consistent with the documented blood pressure readings and the definition and standards for diagnosing hypertension adopted by VA.  On the other hand, the opinion from Dr. C.B. cites to 3 isolated diastolic readings of 90 mmhg to assert that the Veteran manifested hypertension in service.  The probative value of this opinion is significantly reduced by his failure to discuss how the Veteran met the medical definition of hypertension given the multiple normal blood pressure readings which are documented before and after the isolated instances of elevated diastolic pressure.  Furthermore, Dr. C.B. also makes a generalized assertion that the Veteran had hypertension continuously since service without reference to a diagnosis, a supporting clinic finding or a single blood pressure reading.  Additionally, Dr. C.B. asserted at one point that the Veteran also had systolic hypertension but the record does not reflect a single blood pressure reading in service which even meets 140 mmhg which, according to the definition provided by Dr. C.B., would establish "borderline" systolic hypertension.  According to the definition of hypertension agree upon by both parties, the Board can simply find no factual basis of elevated blood pressure readings for many years following service discharge.  

Finally, Dr. C.B. opinion that the Veteran must have manifested hypertension in service as there is no other plausible medical reason for the Veteran to subsequently develop heart disease is contradicted by the VHA examiner's opinion which cites genetics, obesity, physical inactivity, advanced age and obstructive sleep apnea as primary or secondary causes of hypertension - all of which are present to some degree in this case.  In this respect, the medical records reflect that the Veteran's mother had hypertension, that the Veteran had asserted that physical inactivity has led to weight gain, and that he has been diagnosed with obstructive sleep apnea.  The VHA examiner assessment is entirely consistent with the known risk factors for hypertension identified in VBA Training Letter 00-07.  

The Board also takes into account that the Veteran was not diagnosed or treated for hypertension until more than a decade following service - despite receiving routine medical care on other matters.  This lengthy period of time between service discharge and formal treatment tends to weigh against a finding of in-service onset and also tends to lend greater support to the VHA examiner's findings.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving a claim).  

The Board has also considered the personal opinion and belief of the Veteran.  The Board acknowledges that, in service, he reported that he was unsure that he manifested hypertension.  He also filed a service connection claim for hypertension following service but, on his September 1992 VA general medical examination, he actually denied a history of hypertension.  

The Veteran is clearly competent to report a diagnosis he has received from a treating provider as well as blood pressure measurements reported by treating providers or, even, readings from home blood pressure monitors.  Here, the Veteran has not reported specific blood pressure readings in service or contemporaneous in service which could substantiate his claim.  With respect to an actual diagnosis of hypertension, the Board places significantly greater probative weight on the actual recorded blood pressure readings and the examiner interpretations of those readings than the Veteran's personal opinion and belief in this matter, as those examiner's possess greater expertise than the Veteran in addressing a medical issue of fact and are relying on specific blood pressure readings necessary to support the diagnosis.  In the context of the specific findings necessary to support a hypertension diagnosis, the VHA examiner's assessment greatly outweighs the Veteran's generalized allegation of chronicity of symptoms in service and thereafter and, thus, outweighs any evidentiary benefit pursuant to the 38 C.F.R. § 3.303(b).

As such, the Board finds by a preponderance of the evidence that the Veteran did not manifest hypertension in service or many years thereafter, and that his that his hypertension is not causally or etiologically related to any in-service symptomatology or pathology.  The service connection claim for hypertension, therefore, must be denied.  The benefit of the doubt rule does not apply.  Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).

B.  Heart disability

With respect to a heart disability, Dr. C.B. linked the Veteran's heart problems to hypertension.  As reason therefore, Dr. C.B. found no plausible medical basis other than long-standing hypertension to be the etiological agent for cardiovascular abnormalities demonstrated 15-20 years after service.  

On the other hand, the VHA physician found no evidence of cardiac abnormality in service or for many years after service citing specific items of evidence - such as blood pressure readings, EKG's and body mass index (BMI) counts - for the conclusion that obesity was a contributing factor to the Veteran's cardiac abnormalities.   

As indicated above, the undersigned finds the opinion of the VHA physician with regard to an in-service onset of hypertension be more probative than the opinion in this regard by Dr. C.B.  Additionally, the Board finds that the VHA examiner's citation to possible etiological causes other than long-standing hypertension, such as obesity, to be consistent with the factual record as well as the risk factors identified by VBA Training Letter 00-07.  Notably, Dr. C.B. does not cite to one specific clinic finding, other than 3 isolated and elevated blood pressure readings in service, to support the opinion reached.  Thus, comparatively, the VHA examiner's opinion holds significantly greater probative value than the opinion of Dr. C.B. and the Veteran.

Additionally, on this particular issue, the Veteran has not directly argued in service onset of a cardiovascular disability other than hypertension and has not provided any detailed description of chronic symptoms which could support a finding of inservice onset of atrial fibrillation, cardiomegaly, etc. that would allow service connection based on his testimony alone under 38 C.F.R. § 3.303(b).  To the extent his statements can be construed as such, the Board places greater probative weight to the VHA examiner's opinion which is based upon review of specialized testing which would be capable of diagnosing such disorders. 

C.  Sleep apnea

Finally with respect to sleep apnea, Dr. C.B.'s opinion linking sleep apnea to service is based on the statements of the Veteran and two witnesses to having symptoms of snoring, apneic events, and daytime tiredness/somnolence in service.  Thus, in order to evaluate the merits of this issue, the Board must first address the credible facts which support this claim.

The record in this case shows that, approximately 15 years after service discharge, the Veteran was formally diagnosed with sleep apnea in 2007.  After this diagnosis, the Veteran and his witnesses now assert recollections of him having snoring, apneic episodes and daytime somnolence symptoms beginning in the late 1980's.  The Veteran's spouse claims a more specific recollection of symptoms in the Spring of 1992 based upon her pregnancy with insomnia, wherein she more closely observed the Veteran having episodes of stopped breathing.

Here, Dr. C.B. has provided opinion that, based on the recollections of the Veteran and his spouse, that the Veteran's obstructive sleep apnea was likely based on his service time as the medical records did not support a more likely origin for sleep apnea other than sleeping and snoring problems during service.  

On the other hand, the VHA examiner has concluded that it is highly unlikely that the Veteran's current OSA had its onset in service or is causally related to events in service.  In support of this opinion, the VHA examiner directly pointed to the Veteran's obesity, with a BMI as high as 50 in July 2006, as being the cause for the obstructive sleep apnea - which was explained as the "strongest and most important risk factor."  In providing this opinion, the VHA examiner explained that not all snoring patients have obstructive sleep apnea, and that snoring does not define sleep apnea.  Rather, a broad definition requires an apnea hypopnea index (AHI) of greater than 5 events per hour as measured by polysomnography.

Comparing these two opinions, in light of the lay witness testimony, the Board places greater probative weight to the VHA examiner opinion as it directly discusses all evidence for and against an in-service onset, and provides reasoning explaining the conclusion reached.  In this respect, the Board has no reason to doubt the assertion that obesity is the strongest and most important risk factor for obstructive sleep apnea, and the examiner's link of obesity to obstructive sleep apnea is directly supported by reference to the Veteran's weight/BMI in service and thereafter.  The examiner also considered the significance of the lay witness descriptions but explained that snoring alone would not establish a diagnosis of obstructive sleep apnea which, in addition to the reported symptoms to include apneic episodes, requires 5 apnea hypopnea events per hour measured by polysomnography to establish a diagnosis.  Additionally, the VHA examiner also noted additional risk factors of advancing age and the male sex.

On the other hand, the opinion of Dr. C.B. does not provide the criteria for diagnosing obstructive sleep apnea and finds no other likely origins for this disorder other than the lay report of symptomatology.  There is no explanation as to whether the Veteran's obesity is a likely origin.  In short, the reasoning provided by Dr. C.B. is sparse and significantly less persuasive when compared to the opinion of the VHA examiner.

The Board further notes that the VHA examiner opinion is more consistent with the entire evidentiary record, which reflects a formal diagnosis of obstructive sleep apnea approximately 15 years after service discharge when the Veteran had a BMI of 50.

The Board has also considered the statements and opinions of the Veteran, his service mate and spouse.  Notably, the Veteran argues that his AHI in service was 4-5 times higher than the standard for diagnosing obstructive sleep apnea identified by the VHA examiner.  It is unclear, however, how the Veteran arrived at this figure.  Additionally, none of the lay witness descriptions provide the type of specificity of 5 AHI or greater in a one hour period required to support a sleep apnea diagnosis.  With respect to the medical significance of the Veteran's reported symptomatology in service and thereafter, the Board places greater probative weight to the opinion of the VHA examiner who has greater training and expertise than the Veteran and his lay witnesses to speak to the medical symptoms, causes and requirements for diagnosing obstructive sleep apnea. 

The lack of contemporaneous evidence of sleep apnea does not, in and of itself, render the lay evidence discussed above not credible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  In short, the evaluation of the entirety of the record leads the undersigned to find that the VA examiner's conclusion that the Veteran's sleep apnea is related to his obesity - a fact not even discussed by Dr. C.B. - rather than service to be determinative as to the question of whether the Veteran's sleep apnea is of in-service origin.  Nieves-Rodriguez, Stefl, supra.  As obstructive sleep apnea is not listed as a chronic disease in 38 C.F.R. § 3.309(a), the lay testimony alone cannot satisfy the nexus requirement for establishing service connection by relying on evidence of continuity of symptomatology.  Walker, 708 F.3d at 1337.

In sum, the Board finds from the above that the preponderance of the evidence is against the claims for service connection for hypertension, a heart disability, and sleep apnea.  As such, the benefit of a reasonable doubt doctrine is not applicable with respect to these claims, and the claims for service connection for hypertension, a heart disability, and sleep apnea must therefore be denied.  38 U.S.C.A. § 5107.



D.  Restoration

Congress has provided that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C.A. § 1155. When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).

For reductions in rating to be properly accomplished, specific requirements must be met.  See 38 C.F.R. § 3.344; see also Dofflemyer, 2 Vet. App. 277 (1992).  In this case, based on an November 2010 VA Compensation and Pension (C&P) examination, the RO in a December 2010 rating decision, that was preceded by a May 2010 rating decision proposing the reduction, reduced the rating for the Veteran's service-connected L3-L4 disc bulge, residuals of trauma, from 20 to 10 percent, effective March 1, 2011.  

Historically, during service after the Veteran injured his back while lifting weights, an April 1991 CT scan demonstrated disc bulging of L3-L4.  He was ultimately medically discharged from service due to his back disability.  Post service, the initial VA examination conducted in September 1992 showed limitation of lumbar flexion to 25 degrees, and a November 1992 rating decision granted service connection for a disability characterized as disc bulge, L3-4, residuals of trauma, and assigned an initial rating of 20 percent under Diagnostic Code (DC) 5292 (the applicable rating provision in effect at that time) from August 1, 1992, the day following the Veteran's separation from service.  (Rating decisions since February 2009 have listed September 1, 1992, as the date of the initial 20 percent rating.)  The 20 percent rating under DC 5292 was continued by a December 1994 rating decision and a January 2007 administrative decision (based on the failure of the Veteran to respond to a request to submit evidence to support his claim).  

On VA C&P examination in September 2008, it was noted that the course of the Veteran's back disability had become "[p]rogressively worse" since its in-service onset and that the condition was accompanied by sharp, stabbing, and constant pain that radiated to the legs.  Spasms were also reported, and the Veteran described flare-ups of "severe" back disability that forced him to work at home.  Range of motion testing showed 80 degrees of flexion, 25 degrees of extension, 30 degrees of right and left lateral flexion, 45 degrees of right lateral rotation, and 40 degrees of left lateral rotation.  There was pain will all motion and it was noted that magnetic resonance imaging in July 2008 continued to show disc bulging at L3-L4.  The back disability at issue was said by the examiner to result in some severe effect on usual activities.  

Based on this examination report, and with application of the revised criteria for rating spine disabilities, the RO initially reduced the rating for the Veteran's service-connected back disability from 20 to 10 percent effective from January 1, 2010, by way of an October 2009 rating decision.  However, as this reduction preceded the Veteran's February 2010 hearing at the RO before a hearing officer, at which time he testified that he disagreed with the rating reduction, describing in general the severe back pain that he must endure and limitations caused by such pain, the May 2010 rating decision found that the reduction was the product of clear and unmistakable error, and reinstated the 20 percent rating from the date of the reduction.  This rating decision proposed to reduce the rating from 20 to 10 percent with consideration of the February 2010 testimony, and this reduction was ultimately made effective from March 1, 2011, by a December 2010 rating decision.  

At the November 2010 VA C&P examination, it was again noted that the service connected back disability had become "[p]rogressively worse" since it onset.  Severe flare-ups of pain were again described, and the Veteran reported constant daily sharp pain that radiated to his legs.  Motion was, with pain, to 80 degrees of forward flexion, 25 degrees of extension, 30 degrees of left and right lateral flexion, and 40 degrees of right and left lateral rotation.  The lumbar spine condition at issue was said to limit usual daily activities to the extent that there was pain with prolonged walking and standing.  

As regards disability ratings in effect for a period of 5 years or more such as the 20 percent rating that was assigned for the back disability from August 1, 1992, considered herein, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. See 38 C.F.R. § 3.344(c).  Where a Veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation.  38 C.F.R. § 3.344(a).  Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Id. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  Id. 

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement.  Cf. Dofflemyer, 2 Vet. App. at 281-82.  Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history.  In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  
See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown (Kevin) v. Brown, 5 Vet. App. 413-420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

As noted above, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application given the duration of the 20 percent rating.  However, the December 2010 rating decision that reduced the rating, and the portion of the April 2011 SOC addressing this reduction, reflect that the RO failed to consider, and provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions.

In this case, the RO did not address whether the VA examination used as a basis for the reduction was as full and complete as the examination on which the 20 percent rating was established, or whether the evidence demonstrated material improvement that would be maintained under the ordinary conditions of life.  See 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995).  In addition, neither the December 2010 rating decision, nor the April 2011 SOC includes discussion of, or citation to, 38 C.F.R. § 3.344.

The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio.  Such an omission is error and not in accordance with the law.  See Greyzck, 12 Vet. App. at 292.  See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Given the outcome warranted in view of this procedural defect, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction Accordingly, the 20 percent rating assigned for L3-L4 disc bulge, residuals of trauma is restored effective August 1, 1992. 


ORDER

New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened.

Service connection for hypertension is denied. 

Service connection for a heart disability is denied  

Service connection for sleep apnea is denied. 

The claim for restoration of a 20 percent rating for L3-L4 disc bulge, residuals of trauma, from August 1, 1992, is granted.
REMAND

The Board finds that further AOJ action on the claim for a rating in excess of 20 percent for L3-L4 disc bulge, residuals of trauma warranted.

The Veteran was last afforded a VA compensation examination to assess the severity of the service connected lumbar spine disability well over three years ago, in November 2010.  In written contentions, the Veteran describes symptoms that are perhaps indicative of increasing service-connected lumbar spine disability.  Given the amount of time that has elapsed since the Veteran was last afforded an examination to assess the severity of his service connected lumbar spine condition and indication of possible worsening disability, the Board finds that further examination of the Veteran is warranted.  See 38 C.F.R. § 3.327(a) (2013 (examinations will be requested whenever VA determines that there is a need to determine the exact severity of a disability).  See also 38 C.F.R. § 3.159 (2013) and Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination).

The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in the denial of the claim for increased rating.  See 38 C.F.R. § 3.655(b).  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 AOJ should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. 

Prior to arranging for the Veteran to undergo examination, to ensure that the record before the examiner is complete, and that all due process requirements are met, the AOJ should obtain and associate with the claims file any outstanding, pertinent records.
Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran identify any outstanding VA or non-VA treatment records.  Associate with the claims folder records of VA treatment since October 2010.

2.  After completion of the requested development with respect to obtaining additional records, arrange for a VA examination to assess the severity of the service connected lumbar spine disability.  The Veteran's paper and electronic claims files, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.  The examiner(s) should conduct range of motion testing and render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service connected lumbar spine disability.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use.  

The examiner should otherwise describe any functional impairment, to include the impact on employment, resulting from the Veteran's service-connected lumbar spine disability. 

The examiner should set forth all examination findings and any test results, along with complete rationale for the conclusions reached, in a printed (typewritten) report.

3.  After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ is to re-adjudicate the claim that has been remanded.  To the extent this does not result in a complete grant of all benefit sought, the Veteran and his representative should be issued a supplemental statement of the case, and afforded an appropriate time period for 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 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. 2013).



______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs