Citation Nr: 1524835 Decision Date: 06/10/15 Archive Date: 06/19/15 DOCKET NO. 13-34 123A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for allergic rhinitis. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for obstructive sleep apnea (OSA). 4. Entitlement to service connection for erectile dysfunction. 5. Whether new and material evidence has been received to reopen a claim for service connection for hypertension. 6. Whether new and material evidence has been received to reopen a claim for service connection for high cholesterol. 7. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: William J. Overby, Agent ATTORNEY FOR THE BOARD J.C. Chapman INTRODUCTION The Veteran served on active duty from July 1965 to July 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2012 (denied service connection for allergic rhinitis, tinnitus, OSA, and erectile dysfunction and declined to reopen the matters of service connection for hypertension and high cholesterol) and June 2014 (denied entitlement to a TDIU rating) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issues of service connection for tinnitus, OSA, erectile dysfunction, and hypertension (on de novo review), and entitlement to a TDIU rating are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. Chronic allergic rhinitis was not manifested in service or for many years thereafter, and is not shown to be related to the Veteran's service. 2. The Veteran did not appeal a July 2010 rating decision which denied service connection for hypertension, and no new and material evidence was received within one year of that decision. 3. Evidence received since the July 2010 rating decision, including the Veteran's statements alleging that his hypertension is due to his service-connected PTSD, relates to the previously unestablished element of whether the Veteran has hypertension that is attributable to his service. 4. The Veteran did not appeal a July 2010 rating decision which denied service connection for high cholesterol, and no new and material evidence was received within one year of that decision. 5. Evidence received since the July 2010 rating decision does not tend to show that the Veteran has an underlying disability for his high cholesterol; does not relate to the unestablished fact necessary to substantiate the claim of service connection for high cholesterol; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. Service connection for allergic rhinitis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2014). 2. The July 2010 rating decision denying service connection for hypertension and high cholesterol is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2014). 3. New and material evidence has been received to reopen a claim for service connection for hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 4. New and material evidence has not been received, and the claim of service connection for high cholesterol may not be reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Adequate notice was provided in February and July 2012. The duty to assist has also been met. VA has obtained the Veteran's service treatment records (STRs) and pertinent postservice medical records. The Board notes that there is a suggestion in the record that the Veteran is receiving Social Security Administration (SSA) disability benefits; however, a response from SSA indicates that the Veteran has not filed for disability benefits and there are no SSA medical records. The Veteran was also afforded a VA examination with regard to his claim for allergic rhinitis in February 2012. The Board finds that the report of this examination is adequate as the examination was thorough and contained the findings needed to address the matter of service connection for allergic rhinitis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO did not arrange for a VA examination or secure a medical opinion with respect to the claim pertaining to high cholesterol. However, in a claim to reopen the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until/unless the previously denied claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii). Further, in light of the fully favorable determination in the claim to reopen the matter of service connection for hypertension, no further discussion of compliance with VA's duty to notify and assist is necessary. De novo review of this matter is addressed in the remand below. Service Connection - Allergic Rhinitis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he has allergic rhinitis due to service. The Veteran's STRs show that at enlistment, the Veteran reported a history of childhood asthma, but answered "no" to having hay fever. No other defects were noted. On May 1968 service separation examination, he was found to have somewhat erythematous nasal mucosa and enlarged tonsils. The examiner indicated that these conditions are considered as "abnormal" but that they do not require any therapy. On associated report of medical history, the Veteran reported chronic or frequent colds, ear, nose, or throat trouble, and asthma. A physician noted that the Veteran had nose trouble and frequent upper respiratory infections, worse as a child, and also had a problem with respiration at night. Regarding asthma, a physician noted that the Veteran had respiratory problems at age 11, which did not require injection or hospitalization. On February 2012 VA rhinitis examination, the examiner noted a diagnosis of allergic rhinitis. The Veteran reported that he started having intermittent allergies/symptoms during the heavy pollen season while on active duty and that he gets clear nasal discharge during the allergy season currently. He stated that he is not on any prescribed medications and does not take antibiotics or use nasal sprays. He also stated that since he has started using a C-PAP machine, he gets "clear stuffiness when he wakes up that goes away after 2 hours." The examiner noted that the Veteran periodically takes over the counter antihistamines to control his nasal symptoms and that he has been on antibiotics once in the past year. The examiner further noted that the Veteran was recently treated for a cold. A computed tomography scan showed nonspecific mild enlargement of the lateral cervical lymph nodes, which were noted to probably represent reactive adenopathy, and prominent adenoidal and palatine tonsils for the Veteran's age. There was no evidence of significant airway narrowing and the impression was a normal CT appearance of the pharynx and larynx. The examiner indicated that the findings of the CT scan were unrelated to the Veteran's claimed condition. He explained that the Veteran was recently treated for a cold (on February 13, 2012) and the CT completed on February 22, 2012 showed the reactive enlarged lymph nodes. Following an examination, the examiner opined that the Veteran's current nasal symptoms are less likely than not related to service, and specifically are not a continuation of the condition treated in service. The examiner noted that on service separation examination, the Veteran was shown to have a single incident of erythematous nasal mucosa and enlarged tonsils. The examiner then noted that postservice treatment records from the Veteran's primary care provider do not show a diagnosis of allergic rhinitis nor is he shown to be treated with medication for this. The examiner noted that the Veteran has ongoing daily use of alcohol that can decrease one's immunity and that he recently started using his nasal C-PAP machine that can sometimes increase a nasal discharge. Significantly, the examiner noted that examination did not show nasal pathology. The examiner stated that an evidence based literature review indicates that the natural course of a mild upper respiratory tract infection (which is evidenced by erythematous nasal mucosa and enlarged tonsils) takes up to 10 days to resolve. Therefore, the examiner concluded that it is unlikely that the symptoms the Veteran had due to one particular episode while on active duty are causing the Veteran's current nasal condition that is still not diagnosed by his primary care provider. It is not in dispute that the Veteran has a diagnosis of allergic rhinitis, as such was shown to be diagnosed on February 2012 VA examination. However, chronic allergic rhinitis was not manifested in service. Instead, the record shows that he had a singular assessment of somewhat erythematous nasal mucosa and enlarged tonsils. Further, uncontested medical evidence (a February 2012 VA examiner's opinion) indicates that it is unlikely that the Veteran's current nasal problems became manifest in service, noting that he had one episode of nasal problems in service, which was likely to have resolved within 10 days. Hence, service connection for allergic rhinitis on the basis that it became manifest in service and has persisted is not warranted. What remains for consideration is whether the Veteran's allergic rhinitis may somehow otherwise be related to his service. The most probative and persuasive evidence in the record shows that the Veteran's rhinitis is unrelated to his service. The only medical opinion in the record that directly addresses the matter of a nexus between his rhinitis and his service is that of the February 2012 VA examiner who opined that the Veteran's current allergic rhinitis is unrelated to service. The examiner cited to the factual record, including the Veteran's STRs, and a literature review, noting that the Veteran's STRs showed a singular instance of nasal problems in service that were likely to have resolved within 10 days. The examiner also indicated that on examination, nasal pathology was not shown and further, the Veteran was not shown to be receiving current treatment for allergic rhinitis. Because the examiner expressed familiarity with the record and cited to supporting factual data, his opinion is highly probative evidence in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As there is no competent evidence to the contrary, the Board finds it persuasive. The Board has considered the Veteran's statements regarding the etiology of his rhinitis. However, although the Veteran is competent to provide an opinion as to his sinus symptoms, whether or not allergic rhinitis may be related to symptoms in service (which ended more than 40 years earlier) is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is a layperson and has not presented any competent (medical opinion/textual) evidence in support of his allegation that his current rhinitis is related to his service. His unsupported opinion in this matter is not competent evidence. Accordingly, the preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply. The appeal must be denied. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A July 2010 rating decision denied the Veteran service connection for hypertension because there was no nexus to service and denied high cholesterol based essentially on a finding that the Veteran was not shown to have a compensable disability. He did not file a notice of disagreement with the decision or submit new evidence in the following year, and it is final based on the evidence then of record. 38 U.S.C.A. § 7105. The evidence of record at the time of the July 2010 rating decision included the Veteran's STRs, which did not show any evidence of a disability manifested by high cholesterol in service, and postservice treatment records showing that the Veteran was taking medication for his cholesterol and an assessment of elevated cholesterol. There was no evidence showing an underlying disability manifested by high cholesterol. The evidence showed current treatment for hypertension. Evidence added to the record since July 2010 which pertains to hypertension includes the Veteran's assertions that his hypertension is due to his service-connected PTSD and an article submitted by the Veteran showing that hypertension may be associated (as a symptom of) PTSD. That evidence in new and material as it addresses an unestablished fact necessary to substantiate the claim; addressing the lack of nexus noted in the July 2010 rating decision. Thus, the claim is reopened. Evidence received since the July 2010 rating decision which relates to high cholesterol includes additional postservice treatment records which continue to show the Veteran is taking medication for his cholesterol. Also received were the Veteran's contentions that his high cholesterol is due to his service-connected PTSD and an article submitted by the Veteran suggesting an association between high cholesterol and PTSD. This evidence, while new (in that it was not previously included in the record), is not material as it does not show or suggest that the Veteran has an underlying disability manifested by high cholesterol. The evidence also does not show or suggest that the elevated cholesterol causes any impairment of earning capacity. The Board notes that service connection may not be granted for a laboratory finding of itself, without underlying disability. Thus, in the absence of proof of a current disability, there can be no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, this additional evidence does not relate to an unestablished fact necessary to substantiate the claim of service connection for high cholesterol or raise a reasonable possibility of substantiating such claim. Accordingly, the Board finds that even considering the "low threshold" standard [for reopening] endorsed by the Court in Shade, 24 Vet. App. at 110, the criteria for reopening are not met, and the claim of service connection for high cholesterol may not be reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER Service connection for allergic rhinitis is denied. The appeal to reopen a claim for service connection for hypertension is granted. De novo review of this matter is addressed in the remand below. The appeal to reopen the claim for service connection for high cholesterol is denied. REMAND The Veteran contends that he has tinnitus due to service, and specifically due to noise exposure therein. However, he has also submitted an article noting PTSD stress symptoms, to include tinnitus or ringing ears. Considering that tinnitus is shown to be diagnosed and PTSD is service-connected, the Board finds that a medical opinion is needed to resolve whether the Veteran's tinnitus may be caused or aggravated by his PTSD. The Veteran also contends that he has OSA due to his service-connected PTSD. On July 2012 VA examination, an examiner opined that the Veteran's OSA was less likely than not caused or aggravated by his service-connected PTSD. The examiner stated that OSA and PTSD are two different disorders and that OSA is mainly due to the mechanical obstruction of the upper air way that caused obstructive flow of air, whereas PTSD is a different psychological disorder that can cause disturbed sleep due to flashbacks of old unpleasant memories. The examiner also stated that OSA is not permanently aggravated by PTSD, but did not provide any rationale in support of this opinion. Subsequent to this opinion, the Veteran submitted articles suggesting an association between psychiatric disorders (to include PTSD) and sleep apnea. Also, in October 2013, a private physician submitted a statement indicating that it is more likely than not that the Veteran's sleep apnea is caused by (or secondary to) his PTSD. In light of the conflicting evidence and because the VA and private opinions do not include adequate explanation of rationale, a remand is necessary to secure an adequate nexus opinion. See Barr, 21 Vet. App. at 303. Regarding the Veteran's claim for erectile dysfunction, the Veteran has alleged that his currently diagnosed erectile dysfunction is due to his PTSD and/or the medications used to treat his PTSD. On February 2012 VA examination, the examiner opined that erectile dysfunction was not caused or aggravated by his PTSD. The examiner stated that the Veteran had a long history of hypertension since at least 1991 and a long history of alcohol and tobacco use. The examiner stated that hypertension, dyslipidemia, alcohol use, and tobacco use are well described causes of erectile dysfunction in males and are the most likely cause of the Veteran's erectile dysfunction. The examiner further stated that the Veteran's PTSD was not diagnosed and treated until 2006. Initially, the Board notes considering this VA opinion, this claim is inextricably intertwined with the Veteran's claim for hypertension, and resolution of this claim is dependent upon the adjudication of the claim for hypertension being remanded below. Additionally, the Board finds that the examiner's opinion is inadequate as to why the erectile dysfunction is not aggravated by his PTSD or PTSD medications. Accordingly, the Board finds that a supplemental medical opinion as to whether the erectile dysfunction is aggravated by his PTSD or PTSD medications, with adequate explanation of rationale, is warranted. See Barr, 21, Vet. App. at 303. The Veteran alleges that he has hypertension due to his service-connected PTSD. On July 2012 VA examination, the examiner opined that his hypertension is not caused or aggravated by his PTSD. The examiner stated that the Veteran has been a smoker and has had significant ongoing use of alcohol, both of which have been shown to be significant risk factors for hypertension. Additionally, the examiner noted that the Veteran has recently been diagnosed with PTSD, which is a psychological disorder that is caused by the flash back of old unpleasant memories. Regarding aggravation, the examiner stated that the Veteran's hypertension is not aggravated by the PTSD, indicating that since 1994, the Veteran has been on two types of medications and is compliant in taking them. The Board finds that this opinion is inadequate as it does not adequately explain why the Veteran's hypertension is not aggravated by his PTSD, other than to state that the Veteran is taking medication for his hypertension and has been compliant in doing so. Further, the opinion does not appear to consider an article submitted by the Veteran showing that high blood pressure/hypertension may be associated (as a symptom of) PTSD. Accordingly, the Board finds that a supplemental medical opinion, with adequate explanation of rationale, is warranted. See Barr, 21, Vet. App. at 303. Regarding the matter of entitlement to a TDIU rating, the Board notes that a June 2014 rating decision denied this claim. Correspondence from the Veteran received in September 2014 expresses disagreement with the denial and is reasonably interpreted as a (timely) notice of disagreement with the June 2014 rating decision. The RO has not issued a statement of the case (SOC) in the matter. In such circumstances the Board is required to remand the matter for issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). This matter is not currently before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal after a SOC is issued. Accordingly, the case is REMANDED for the following actions: 1. Secure for the record copies of complete updated clinical records of any VA or private evaluations or treatment the Veteran has received for the disabilities remaining on appeal. 2. Arrange for an appropriate opinion provider to opine as to the likely etiology of the Veteran's tinnitus, and specifically whether such is caused or aggravated by his service-connected PTSD. The Veteran's entire record must be reviewed by the opinion provider. Following a review of the record, the provider should respond to the following: (a) Is the Veteran's tinnitus at least as likely as not (a 50% or greater probability) caused or aggravated by (increased in severity due to) his service-connected PTSD? (b) If the opinion is that the tinnitus was not caused, but was aggravated by PTSD, specify, to the extent possible, the degree of tinnitus that resulted from such aggravation (i.e., identify the baseline level of severity of the tinnitus before the aggravation occurred, and the level of severity of the tinnitus after aggravation). A complete rationale for all opinions must be provided, to include discussion of the article noted above indicating that tinnitus may be associated (in some way) with PTSD. 3. Arrange for a supplemental medical opinion to be provided by an appropriate opinion provider regarding the etiology of the Veteran's OSA. The entire record must be reviewed by the opinion provider. Following a review of the record, the provider should respond to the following: (a) Is the Veteran's OSA at least as likely as not (a 50% or greater probability) caused or aggravated by (increased in severity due to) his service-connected PTSD? (b) If the opinion is that the OSA was not caused, but was aggravated by PTSD, specify, to the extent possible, the degree of OSA that resulted from such aggravation (i.e., identify the baseline level of severity of the OSA before the aggravation occurred, and the level of severity of the OSA after aggravation). A complete rationale for all opinions must be provided, to include discussion of the opinions of record (including the July 2012 VA opinion and the October 2013 private opinion) and the articles noted above indicating that sleep apnea may be associated with PTSD. 4. Arrange for a supplemental medical opinion to be provided by an appropriate opinion provider regarding the etiology of the Veteran's erectile dysfunction, and specifically whether such is aggravated by his PTSD and/or PTSD medications. The entire record must be reviewed by the opinion provider. Following a review of the record, the provider should respond to the following: (a) Is the Veteran's erectile dysfunction at least as likely as not (a 50% or greater probability) aggravated by (increased in severity due to) his service-connected PTSD and/or medications used to treat his PTSD? (b) If the opinion is that the erectile dysfunction was aggravated by PTSD, specify, to the extent possible, the degree of erectile dysfunction that resulted from such aggravation (i.e., identify the baseline level of severity of the erectile dysfunction before the aggravation occurred, and the level of severity of the erectile dysfunction after aggravation). A complete rationale for all opinions must be provided. 5. Arrange for a supplemental medical opinion to be provided by an appropriate opinion provider regarding the etiology of the Veteran's hypertension, and specifically whether it is caused or aggravated by his PTSD. The entire record must be reviewed by the opinion provider. Following a review of the record, the provider should respond to the following: (a) Is the Veteran's hypertension at least as likely as not (a 50% or greater probability) caused or aggravated by (increased in severity due to) his service-connected PTSD? (b) If the opinion is that the hypertension was not caused, but was aggravated by PTSD, specify, to the extent possible, the degree of hypertension that resulted from such aggravation (i.e., identify the baseline level of severity of the hypertension before the aggravation occurred, and the level of severity of the hypertension after aggravation). A complete rationale for all opinions must be provided, to include discussion of the article noted above indicating that high blood pressure/hypertension may be associated (in some way) with PTSD. 6. Arrange for any further development deemed indicated by the development ordered above. 7. Then review the record and readjudicate the claims of service connection for tinnitus, OSA, erectile dysfunction and hypertension. If any remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. 8. Issue an appropriate SOC regarding the matter of entitlement to a TDIU rating. The Veteran and his representative should be advised of the time limit for perfecting his appeal and afforded the opportunity to do so. If this occurs, this matter should be returned to the Board for appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs