Citation Nr: 1537135 Decision Date: 08/31/15 Archive Date: 09/04/15 DOCKET NO. 14-24 123A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for traumatic brain injury (TBI). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1968 to April 1973. The issues of entitlement to service connection for diabetes mellitus and entitlement to a TDIU come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The issues of entitlement to service connection for sleep apnea and TBI come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the St. Paul, Minnesota RO. The Veteran testified at a July 2015 Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Also, a review of the electronic records maintained in Virtual VA was conducted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's diabetes mellitus was caused by his service-connected non-specified anxiety disorder with depressive features [herein anxiety disorder] and service-connected lightheadedness. 2. The Veteran's sleep apnea was caused by his service-connected anxiety disorder. 3. The evidence is at least in equipoise as to whether the Veteran has a current diagnosis of TBI. 4. The Veteran's TBI was caused by his service-connected lightheadedness or is directly related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus as secondary to a service-connected anxiety disorder and service-connected lightheadedness have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015). 2. The criteria for entitlement to service connection for sleep apnea as secondary to a service-connected anxiety disorder have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.310 (2015). 3. The criteria for entitlement to service connection for TBI have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Considering the favorable outcome detailed below as to the grant of the Veteran's claims, VA's fulfillment of its duties to notify and assist need not be addressed at this time. I. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2015). Generally, in order to establish direct service connection, three elements must be established. There must be medical, or in certain circumstances, lay evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2015); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). II. Diabetes Mellitus Initially, the evidence shows that the Veteran has a current diagnosis of diabetes mellitus. See, e.g., February 2013 VA General Medical Disability Benefits Questionnaire (DBQ). After review of the evidence of record, the Board concludes that the evidence is at least in equipoise as to whether the Veteran's diabetes mellitus was caused by his service-connected anxiety disorder and service-connected lightheadedness. Of record are multiple letters from Dr. J.Z. A letter dated May 2013 noted that the Veteran was a patient of Dr. J.Z. This letter stated in part: [The Veteran] asked me to write him a letter to determine if in fact the depression/anxiety which he had first might have more likely than not contributed to his developing the other major medical conditions and I believe that this is indeed the case. With his depression/anxiety, he became somewhat despondent and took worse care of himself, causing him to gain a fair amount of weight as he did not participate in exercise and turned to food as his redeemer. He developed diabetes...because of this...Again, if he had not been depressed and used food to help satisfy his needs where nothing else would and stopped exercising, he would not have developed any of the other medical conditions...All of these conditions can be traced directly back to [the Veteran's] depression and anxiety - maybe not as a direct cause but a definite contributing factor and more than likely partially to blame. In another letter from Dr. J.Z. dated June 2013, it was stated that "[a]gain, due to the anxiety issues, [the Veteran] gained a fair amount of weight in comfort eating and not exercising which led to his diabetes." An additional letter from Dr. J.Z. dated November 2014 stated that "[t]his diagnosis (diabetes) may very well have started from the fact that [the Veteran] gained weight because of lack of exercise due to poor balance/dizziness and not feeling comfortable on his feet. Obesity is directly related to onset of adult onset diabetes." The Board notes that a July 2012 rating decision granted entitlement to service connection for lightheadedness and assigned a 30 percent disability rating "for findings of dizziness with occasional staggering." Alternatively, a May 2014 VA opinion provided a negative opinion with respect to whether the Veteran's diabetes mellitus was secondary to his service-connected anxiety disorder. The Board finds that the opinion of Dr. J.Z. is supported by a cogent rationale and is therefore found to be probative. Accordingly, the evidence of record is at least in equipoise as to whether the Veteran's diabetes mellitus was caused by his service-connected anxiety disorder and service-connected lightheadedness. As such, and resolving reasonable doubt in favor of the Veteran, the Board concludes that the criteria for entitlement to service connection for diabetes mellitus as secondary to a service-connected anxiety disorder and service-connected lightheadedness have been met and the Veteran's claim is therefore granted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015). III. Sleep Apnea Initially, the evidence shows that the Veteran has a current diagnosis of sleep apnea. See, e.g., February 2015 VA Sleep Apnea DBQ. After review of the evidence of record, the Board concludes that the Veteran's sleep apnea was caused by his service-connected anxiety disorder. Of record are multiple letters from Dr. J.Z. A letter dated May 2013 noted that the Veteran was a patient of Dr. J.Z. This letter stated in part: [The Veteran] asked me to write him a letter to determine if in fact the depression/anxiety which he had first might have more likely than not contributed to his developing the other major medical conditions and I believe that this is indeed the case. With his depression/anxiety, he became somewhat despondent and took worse care of himself, causing him to gain a fair amount of weight as he did not participate in exercise and turned to food as his redeemer. He developed...obstructive sleep apnea because of this...Again, if he had not been depressed and used food to help satisfy his needs where nothing else would and stopped exercising, he would not have developed any of the other medical conditions...All of these conditions can be traced directly back to [the Veteran's] depression and anxiety - maybe not as a direct cause but a definite contributing factor and more than likely partially to blame. In another letter from Dr. J.Z. dated June 2013, it was stated that "[a]gain, due to the anxiety issues, [the Veteran] gained a fair amount of weight in comfort eating and not exercising which led to his...[obstructive sleep apnea]." A February 2015 VA opinion provided a negative opinion with respect to whether the Veteran's diabetes mellitus was secondary to his service-connected anxiety disorder. The rationale provided was that "[a]nxiety or depression does not cause obstructive sleep apnea (OSA). OSA is caused by mechanical compromise of the upper airways during sleep, usually associated with obesity...The [V]eteran has comorbidities of morbid obesity." The opinion additionally stated that the Veteran's diagnosis of sleep apnea "coincides with the time period he has become morbidly obese." Based on the evidence of record, the Board finds that the Veteran's sleep apnea was caused by his service-connected anxiety disorder. The letters from Dr. J.Z. contained medical opinions indicating that the Veteran's service-connected anxiety disorder resulted in the Veteran's obesity, which resulted in the Veteran's sleep apnea. The physician's opinion is supported by a cogent rationale and is entitled to probative weight. The February 2015 VA opinion, while providing a negative opinion as to whether the Veteran's sleep apnea was secondary to his service-connected anxiety disorder, also suggested that the Veteran's sleep apnea was caused by his obesity. The February 2015 VA opinion, however, did not address the causation of the Veteran's obesity, which the letters from Dr. J.Z. attributed to the Veteran's service-connected anxiety disorder. As such, the Board concludes that the criteria for entitlement to service connection for sleep apnea as secondary to a service-connected anxiety disorder have been met and the Veteran's claim is therefore granted. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.310 (2015). IV. TBI With respect to whether the Veteran has a diagnosis of TBI, the evidence of record is conflicting. An April 2014 VA TBI DBQ indicated that the Veteran did not have a diagnosis of TBI. The DBQ referenced two incidents in-service, one involving a fight where the Veteran was punched in the head and lost consciousness in 1968 and another in 1970 or 1972 where, while working on tanks, he hit his head on the "side of the tank hole" and lost consciousness. It was noted that no medical attention was received for either incident. A February 2015 VA examination report indicated that the Veteran did not have a diagnosis of TBI. The examination report referenced that the "[V]eteran is claiming TBI from accidental falls due to dizziness" and also referenced an in-service incident involving a fight where the Veteran was punched and he lost consciousness. Alternatively, a letter dated May 2013 from Dr. J.Z. stated that "[d]ue to the vertigo [the Veteran] took a few falls and ended up suffering a traumatic brain injury." In a letter dated June 2013, Dr. J.Z. stated that "the vertigo...and history of falls that led to traumatic brain injury." A letter dated November 2014 from Dr. J.Z. stated that the Veteran's service files had been reviewed and stated that in 1968 the Veteran "suffered a traumatic brain injury at Fort Campbell when he was punched in the right side of the head and lost consciousness. He suffered a second head trauma when he hit his head coming out of a tank." The letter further stated that the Veteran "has continued to have frequent head injuries where he has fallen and/or hit his head over the last 2-3 years...Many occurred because of [i]mbalance and dizziness issues." A letter dated June 2015 from Dr. J.Z. stated that the Veteran "suffered his first TBI...in 1968 at Fort Campbell in the military when he was punched in the right side of the head and was knocked out. Following that he had headaches, confusion, dizziness." The letter further stated that the Veteran "had a second TBI coming out of the driver's portal of a tank at Fort Bliss in 1972." The letter also stated that the Veteran "[h]as had numerous falls from dizziness and unsteady balance that have happened since then." With respect to the reported in-service head trauma, the Board notes that such incidents are not documented in the Veteran's service treatment records, but as referenced above, the April 2014 VA TBI DBQ stated that no medical attention was received for either incident. The Board notes that the July 2012 rating decision that granted entitlement to service connection for lightheadedness referenced a March 2012 VA examination report that provided a positive opinion linking the Veteran's lightheadedness to his active service. The July 2012 rating decision, citing to the March 2012 VA examination report, stated that the Veteran had "lightheadedness and intermittent imbalance which has occurred ever since your military service which was subsequent to two head traumas while in the service." The rating decision granted entitlement to service connection for lightheadedness as directly related to the Veteran's active service. As such, it appears that VA has previously accepted that the reported in-service head trauma incidents, relating to the Veteran being punched and hitting his head on a tank, did occur and therefore it is accepted that the Veteran suffered these reported in-service head traumas. Upon review, the Board concludes that the evidence is at least in equipoise as to whether the Veteran has a diagnosis of TBI. As noted, while the April 2014 VA TBI DBQ and February 2015 VA examination report indicated that there was no diagnosis of TBI, Dr. J.Z. referenced the Veteran as having TBI in letters dated in May 2013, June 2013, November 2014 and June 2015. As such, and resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran has a current diagnosis of TBI. Turning to whether service connection is warranted for the Veteran's TBI, the Board notes that an April 2014 VA opinion stated that "there is no diagnosis of [TBI]...no opinion can be given at this time." A February 2015 VA opinion provided a negative opinion with respect to whether the Veteran's TBI was related to the Veteran's active service or secondary to his service-connected lightheadedness, with rationales essentially stating that there was no diagnosis of TBI. Alternatively, as noted above, Dr J.Z. provided multiple letters addressing the Veteran's TBI. The letter dated May 2013 stated that "[d]ue to the vertigo [the Veteran] took a few falls and ended up suffering a traumatic brain injury," the letter dated June 2013 stated that "the vertigo...and history of falls that led to traumatic brain injury and more significant vertigo and recurrent falls," the letter dated November 2014 stated that the Veteran "has continued to have frequent head injuries where he has fallen and/or hit his head over the last 2-3 years...Many occurred because of [i]mbalance and dizziness issues" and the letter dated June 2015 stated that the Veteran "[h]as had numerous falls from dizziness and unsteady balance that have happened since" his active service. The Board notes that the Veteran's service-connected lightheadedness is noted on rating decision codesheets to have been claimed as vertigo and that the July 2012 rating decision granting entitlement to service connection for lightheadedness assigned a 30 percent disability rating "for findings of dizziness with occasional staggering." Upon review, the May 2013, June 2013, November 2014 and June 2015 letters from Dr. J.Z. support that the Veteran's TBI is secondary to his service-connected lightheadedness. In addition, the letter dated November 2014 also stated that in 1968 the Veteran "suffered a traumatic brain injury at Fort Campbell when he was punched in the right side of the head and lost consciousness. He suffered a second head trauma when he hit his head coming out of a tank." Further, the June 2015 letter stated that that the Veteran "suffered his first TBI...in 1968 at Fort Campbell in the military when he was punched in the right side of the head and was knocked out. Following that he had headaches, confusion, dizziness" and further stated that the Veteran "had a second TBI coming out of the driver's portal of a tank at Fort Bliss in 1972." As noted above, the Board has accepted that these reported in-service head traumas occurred. Upon review, the November 2014 and June 2015 letters from Dr. J.Z. support that the Veteran's TBI is directly related to his active service. In review, the Board concludes that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of TBI. In addition, the various letters from Dr. J.Z. support that the Veteran's TBI is secondary to his service-connected lightheadedness and that the Veteran's TBI is directly related to his active service. The negative February 2015 VA opinion as to the issue of secondary and direct service connection for the Veteran's TBI is of limited probative value as the rationale essentially relied on a lack of TBI diagnosis, which as noted, the Board has concluded does exist. As a result, the Board concludes that the Veteran's TBI was caused by his service-connected lightheadedness or is directly related to his active service. As such, the criteria for entitlement to service connection for TBI have been met and the Veteran's claim is therefore granted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for TBI is granted. REMAND With respect to the Veteran's claim for entitlement to a TDIU, as noted above, this decision has granted entitlement to service connection for three disabilities. Disability ratings for these service-connected disabilities will be assigned by the AOJ. As the Veteran has indicated that these disabilities also affect his ability to work, disability ratings should be assigned before a TDIU determination is made by the Board. As such, remand is required to conduct any additional development deemed warranted and to readjudicate the Veteran's claim for entitlement to a TDIU following the assignment of disability ratings for the Veteran's service-connected diabetes mellitus, sleep apnea and TBI (as granted herein). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). Expedited handling is requested.) Following the assignment of disability ratings for the Veteran's service-connected diabetes mellitus, sleep apnea and TBI (as granted herein), conduct any additional development deemed warranted and readjudicate the Veteran's claim for entitlement to a TDIU in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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 2014). ______________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs