Citation Nr: 1510342 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 13-06 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for high blood pressure, to include as secondary to service-connected PTSD. 4. Entitlement to service connection for a stomach disability, claimed as gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD. 5. Entitlement to service connection for vertigo and balance problems. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Dr. T.C. ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from September 1972 to October 1977 with additional service with the National Guard and Reserves from 1979 to 2003. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the service connection claims on appeal and granted service connection for PTSD with an evaluation of 30 percent, effective from the date of service connection on February 2, 2009. Subsequently, a December 2012 rating decision increased the initial disability rating for PTSD to 50 percent effective from the date of service connection on February 2, 2009. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using a physical claims file and the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these records. The Veteran and Dr. T.C. provided testimony before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing in December 2013. A copy of the transcript is associated with Virtual VA. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2013). The Board finds that the Veteran raised the issue of entitlement to TDIU during the December 2013 hearing and assumes appellate jurisdiction over the inferred claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a rating decision dated in September 2010, the RO denied service connection for vertigo and balance problems. In January 2011 the Veteran submitted a notice of disagreement as to this issue. A Statement of the Case has not been issued and the Board is required to remand, rather than refer, this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Increased Rating Claim The Veteran has not been afforded a VA examination to determine the current degree of severity of his service-connected PTSD since August 2009. In light of his testimony which indicates there may have been a worsening of the symptoms, development to afford the Veteran a current examination is in order. Service Connection Claims The Veteran contends that service connection is warranted for sleep apnea, high blood pressure, and a stomach disability (claimed as GERD) as related to active service. Specifically, the Veteran testified before the undersigned VLJ that his stomach disability began in service and that his high blood pressure was problematic in 2001 after a documented "in the line of duty" motor vehicle accident. Alternatively, the Veteran contends that these disabilities are secondary to his service-connected PTSD. Service treatment records show that the Veteran sought treatment for stomach problems in October 1975, and January 1976; a diagnosis of gastroenteritis was noted in October 1975, and a notation of slight reflux is shown in September 1976. A September 2001 treatment record of Dr. Nunnally indicates that the Veteran had a past medical history of hypertension. The Veteran testified that he was diagnosed as having hypertension in November 2000. On remand, outstanding records concerning the diagnosis of hypertension and any additional records showing blood pressure readings after the October 2001 accident should be obtained. The Board notes that the Veteran submitted the following private opinions in support of his claims: Dr. M.J.L., M.D., submitted a statement in November 2010 in which he noted that apparently there was new data to support an association between PTSD and sleep apnea. The doctor noted that the Veteran reported a history of PTSD and opined that it was as likely as not that sleep apnea was aggravated by PTSD. Dr. M.A.W., D.O., submitted a statement in December 2010 in which he opined that it was as likely as not that the high blood pressure was aggravated by the service-connected PTSD; medical research supported the positive relationship. Dr. S.M.F., M.D., submitted a statement in February 2011 in which he opined that it was likely as not that the GERD aggravated the Veteran's service-connected PTSD; there was a substantial amount of medical research and literature to support the positive relationship between stress and GERD. In response to his claims, the Veteran was afforded VA examinations in November 2012 in which the examiner opined that it was less likely than not that the Veteran's claimed sleep apnea, hypertension, and GERD were related to or caused by his service-connected PTSD. The VA examiner subsequently explained the mechanics of sleep apnea, stated that the hypertension was idiopathic (had no cause), and explained the mechanics of GERD. The VA examiner did not address the Veteran's claims for direct service connection but solely provided opinions as to his claims for secondary service connection. On remand, the Board finds that the VA examiner should address the Veteran's contentions regarding direct service connection. Finally, while the Veteran filed a claim for service connection for GERD, he has submitted medical evidence showing that during the pendency of this claim, from February 2009, he has been diagnosed with gastritis, diverticulosis, helicobacter pylori (H. pylori), and hiatal hernia. Because the evidence developed during the processing of this claim indicates that the symptoms for which the Veteran is seeking VA benefits may be caused by a stomach disability other than GERD, the issue of entitlement to service connection for a stomach disability other than GERD is part of the Veteran's appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009). TDIU On remand, a medical examination should be obtained concerning the functional impairment that results from the service-connected disabilities. Manlincon Issue In a rating decision dated in September 2010, the RO denied service connection for vertigo and balance problems. In January 2011 the Veteran submitted a notice of disagreement to this issue. A Statement of the Case has not been issued and the Board is required to remand, rather than refer, this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development of the issue of entitlement to TDIU, including the provision of the notice required under 38 U.S.C. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2013). Request that the Veteran submit a TDIU claim form. 2. Undertake appropriate development to obtain any outstanding medical records pertaining to treatment or examination of the claimed disabilities on appeal. Request that the Veteran provide or authorize the release of any relevant non-VA records, including any records from medical providers, including but not limited to Drs. Nunnally, Ellis and/or Williams, concerning the diagnosis and treatment of hypertension from 2000 on. 3. After completion of the above, schedule the Veteran for a VA psychiatric examination to assess the current severity of his PTSD disability. Access to the electronic claims file and the entire physical claims file, including this Remand, must be made available to the examiner, and the examiner must indicate review of such records. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail. Specifically, the examination report should contain a detailed account of all manifestations of the Veteran's service-connected PTSD. The examiner must also comment on the functional impairment resulting from the Veteran's PTSD which may affect the ability to function and perform tasks in a work setting. 4. Then, the claim files (to include access to the electronic records) should be returned to the VA examiner who conducted the November 2012 VA examinations. The examiner should be requested to review the claim files and provide an addendum in which he or she responds to the following questions: (a) Is it at least as likely as not that the Veteran's current sleep apnea is due to or caused by his service-connected PTSD? (b) Is it at least as likely as not that the Veteran's current sleep apnea is aggravated (i.e., worsened beyond the natural progress) by his service-connected PTSD? (c) Is it at least as likely as not that hypertension was incurred as a result of the motor vehicle accident on October 23, 2001, which occurred while he was on his way to a military physical examination? If hypertension existed prior to this accident, was it aggravated (i.e., permanently worsened) beyond the natural progress as a result of this injury? (d) Is it at least as likely as not that the Veteran's current hypertension is due to or caused by service-connected PTSD? (e) Is it at least as likely as not that the Veteran's current hypertension is aggravated (i.e., worsened beyond the natural progress) by his service-connected PTSD? (f) Is it at least as likely as not that the Veteran's current stomach disabilities (including gastritis, diverticulosis, any disorder resulting from H. pylori, hiatal hernia, and GERD) originated during active service or are otherwise etiologically related to his active service? (g) Is it at least as likely as not that the Veteran's current stomach disabilities (including gastritis, diverticulosis, H. pylori, hiatal hernia, and GERD) are due to or caused by service-connected PTSD? (h) Is it at least as likely as not that the Veteran's current stomach disabilities (including gastritis, diverticulosis, H. pylori, hiatal hernia, and GERD) are aggravated (i.e., worsened beyond the natural progress) by his service-connected PTSD? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner's attention is directed to the Veteran's assertions that his hypertension was diagnosed in November 2000, that he had problems with hypertension in 2001 after the documented "in line of duty" motor vehicle accident, the September 2001 medical record of Dr. Nunnally indicating that the Veteran had a past medical history of hypertension, the October 24, 2001 medical record of M. Ellis, D.O., indicating that the Veteran's blood pressure was elevated, that his stomach disabilities began in service with attention paid to service treatment records in 1975 and 1976 concerning gastroenteritis and reflux, and the private etiological opinions by Dr. M.J.L., M.D., Dr. M.A.W., D.O., and Dr. S.M.F., M.D. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the November 2012 examiner is unavailable, the claim files should be reviewed by another examiner with appropriate expertise who should be requested to provide the required opinions with supporting rationale. If it is determined that another examination is necessary in order to provide the requested opinion, then one should be provided. 5. Provide the Veteran with an examination to ascertain the functional impairment that results from his service-connected lumbar spine and strain, cervical spine and strain, and tinnitus. The examiner should provide information concerning the functional impairment that results from each disability that may affect the ability to function and perform tasks in a work setting. 6. Then, after ensuring any other necessary development has been completed, readjudicate the remaining issues on appeal. If any benefit sought remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them with an appropriate opportunity to respond. The appeal should then be returned to the Board for further appellate review, if otherwise in order. 7. The AOJ should take all indicated action in order to issue an SOC with respect to entitlement to service connection for vertigo and balance problems. Only if the Veteran perfects an appeal should this issue be certified to the Board and after any necessary development has been completed. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).