Citation Nr: 1544374	
Decision Date: 10/19/15    Archive Date: 10/29/15

DOCKET NO.  14-15 287	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to service connection for obstructive sleep apnea.

2. Entitlement to service connection for chronic insomnia to include as secondary to service-connected disabilities.
 
3. Entitlement to an initial rating in excess of 10 percent for thoracic spine spondylosis, T6 to T10, interior wedging T6 to T9, lumbar spine degenerative joint disease L3 to L4 and L5 to S1, facet joint arthritis at L5 to S1, thoracolumbar strain and lumbar hyperlordosis.

4. Entitlement to an initial rating in excess of 10 percent for status postoperative repair of the left shoulder with residual impingement and residual scar.

5. Entitlement to an initial compensable rating for hypertension.

6. Entitlement to an initial rating in excess of 10 percent for hypertension.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his wife


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel


INTRODUCTION

The Veteran had active duty service from November 1999 to January 2009.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Los Angeles, California and Milwaukee, Wisconsin.  The RO in Los Angeles, California forwarded the appeal to the Board.

In June 2015, the Veteran testified at a videoconference hearing before the undersigned.  A transcript of the hearing is of record.

The Board observes that at the June 2015 hearing, the appellant stated that when he filed the claim of entitlement to service connection for insomnia, he also meant to include an acquired psychiatric disorder other than anxiety.  While the scope of a claim must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim, here the Board finds that the appellant had no reasonable expectation that a claim for insomnia would include an acquired psychiatric disorder.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  Indeed, even as a non-expert claimant, in November 2011, the Veteran distinguished between sleep disorders and psychiatric disorders by separately claiming entitlement to service connection for generalized anxiety disorder and obstructive sleep apnea.  While the Board therefore recognizes the Veteran's attempts to raise the issue of entitlement to service connection for an acquired psychiatric disorder other than generalized anxiety, the Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary.  38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015).

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records.

The issues of entitlement to service connection for obstructive sleep apnea, and entitlement to initial ratings in excess of 10 percent for a thoracolumbar spine disability, a left shoulder disorder and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's insomnia is due to his service-connected disabilities.

2. The evidence currently associated with the claims file reveals diastolic blood pressure predominantly 100 or more requiring continuous medication.


CONCLUSIONS OF LAW

1. Insomnia is proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.310 (2015).

2. The criteria for an initial 10 percent rating for hypertension have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7101 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 includes enhanced duties to notify and assist claimants for VA benefits.  Given the favorable disposition of the claims, the Board finds that all notification and development action needed to fairly adjudicate them has been accomplished.

Insomnia

The Veteran claims entitlement to service connection for chronic insomnia to include as secondary to service-connected disabilities.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  Service connection may be granted for any disease initially diagnosed after service 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).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  The Veteran is service connected for, among other disabilities, traumatic brain injury (TBI) and anxiety disorder, as well as a number of musculoskeletal disabilities, including a left shoulder disability, a right knee disability, right hip arthritis, a thoracolumbar spine disorder, a cervical spine disorder, right knee instability, bilateral ankle sprains, and arthritis of the hands and right elbow.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In September 2008, a VA examiner, a PhD in psychology, diagnosed the appellant with primary insomnia but concluded that it was not the result of a primary mental condition.  The examiner indicated, however, that he had not reviewed the claims file.

In February 2014, a VA examiner, an M.D. and PhD, opined, after reviewing the claims file but without examining the appellant, that the Veteran's sleep difficulties were attributable to his anxiety disorder and chronic pain.  He noted that the appellant reported chronic insomnia as a symptom of his multiple musculoskeletal injuries with resulting pain syndrome from his years of parachute jumping.

In November 2014, in connection with a separate claim involving TBI, a VA contract examiner, an M.D., opined, after examining the Veteran and reviewing the claims file, that the Veteran's chronic sleep impairment was attributable to both the anxiety disorder and TBI.

VA treatment records reveal that the Veteran has received regular treatment for insomnia including prescription medication such as Ambien, trazodone and temazepam.

In light of the above, the Board finds that entitlement to service connection for insomnia is warranted.

The Board observes that there is some issue regarding the extent to which the Veteran's insomnia is merely a symptom of a disorder as opposed to an independently diagnosed disorder.  Indeed, the rating criteria for the Veteran's service-connected TBI and anxiety disorder already contemplate sleep impairment.  See 38 C.F.R. § 4.124a, Diagnostic Code 8045, 4.130, General Rating Formula for Mental Disorders (2015).  Further complicating this analysis is the fact that the Veteran currently also has sleep apnea which, at present, is not service connected.

For purposes of establishing service connection, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past.  Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998).  Here, the September 2008 VA examiner diagnosed the Veteran with primary insomnia after the Veteran submitted his August 2007 claim.  This is sufficient to satisfy the current disability requirement.

While the Board recognizes that the Veteran's insomnia may overlap with symptoms of other service-connected disorders, here, the Board's only focus is the etiology of the current disability.  The February and November 2014 examiners concluded that the appellant's insomnia resulted from his service-connected disabilities including TBI, anxiety disorder and various musculoskeletal disorders.  Both doctors reviewed the entire claims file and provided accurate opinions.  The Board finds the February 2014 opinion to be particularly probative as the examiner provided a clear rationale for the opinion that the insomnia was attributable to the Veteran's anxiety disorder and chronic pain.  Thus, the Board finds that a preponderance of the evidence shows that the Veteran's insomnia is a result of his service-connected anxiety disorder, TBI and various musculoskeletal disorders.  This is sufficient to establish entitlement to service connection.  38 C.F.R. § 3.310.  Therefore, the claim is granted.

Hypertension

The appellant also claims entitlement to an initial compensable rating for hypertension.  Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Hypertension is evaluated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101, which provides for 10 percent rating when diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or, as a minimum evaluation for an individual with history of diastolic pressure predominantly 100 or more who requires continuous medication.  To warrant a 20 percent rating, the evidence must show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101.

VA treatment records show that the Veteran takes regular medication for hypertension.  At a September 2008 VA examination, the examiner noted that the Veteran had been taking Clonidine for eight months with good response.  From January 2010 until October 2014, the Veteran's VA treatment records show that he was taking Clonidine and Lisinopril for blood pressure control.

While VA treatment records show that diastolic blood pressure has ranged between 62 and 107, the Board finds that on balance diastolic blood pressure has been predominately 100.  In January 2010, blood pressure was 160/116, 147/107, 143/107, and 157/118; in December 2010, it was 158/106 and 142/100; in August 2012, 148/112 and 146/100; in January 2013, 150/100 and 153/109.  While diastolic readings taken in September 2014 were mixed - 158/118 and 153/78 - and the record shows other diastolic blood pressure readings below 100, resolving reasonable doubt in favor of the Veteran, and recognizing the potential complications of asking the Veteran to discontinue needed medication for a more definitive look at his blood pressure, the Board finds there is sufficient evidence for a finding that diastolic blood pressure has been predominately 100.  38 C.F.R. § 4.3.

Given the above, an initial rating of 10 percent is warranted for hypertension.  38 C.F.R. § 4.104, Diagnostic Code 7101.

At the June 2015 hearing, however, the Veteran claimed that his blood pressure has been predominately around 180/120 and as discussed below, potentially relevant records are outstanding.  Therefore, consideration of entitlement to an initial rating in excess of 10 percent is deferred pending further development below.


ORDER

Entitlement to service connection for chronic insomnia, secondary to service-connected disability, is granted.

Entitlement to an initial 10 percent rating for hypertension is granted.


REMAND

Further development of the remaining claims is required.  A January 2011 VA psychiatry treatment record shows that the Veteran currently receives disability benefits from the Social Security Administration (SSA).  The documents pertaining to this application, however, have not been associated with the claims folder and the possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records.  Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002).

In February 2014, a VA examiner provided a thorough opinion regarding the etiology of the appellant's obstructive sleep apnea.  The examiner's conclusion that it was unrelated to service relied in part on the assumption that the appellant had been first diagnosed in October 2011.  In June 2015, however, the Veteran submitted the results of a private sleep study which took place in July 2009 and which the appellant claims indicates that his sleep apnea is related to service.  As the February 2014 examiner did not have access of this evidence, an addendum opinion should be obtained.

Regarding the thoracolumbar spine disability, at the June 2015 hearing, the Veteran reported that his back disorder had worsened since the most recent VA examination which took place in September 2008.  VA treatment records dated after September 2008 show decreased spine range of motion, as well as radiculopathy and positive bilateral straight leg raise tests - symptoms not present at the September 2008 VA examination.  As such, a new examination should be obtained.  VAOPGCPREC 11-95 (Apr. 7, 1995).

While the appellant also claimed at the June 2015 hearing that his left shoulder disability had worsened since a September 2008 VA examination, there is little medical evidence supporting such an assertion and, indeed, a September 2014 VA treatment record shows full range motion in all four extremities.  Because potentially relevant treatment records remain outstanding, after conducting all required development, the AOJ should consider whether a new VA shoulder examination should be obtained.

Accordingly, the case is REMANDED for the following action:

1. Obtain all records relating to the disability determination of the Social Security Administration.  

2. Thereafter, forward the entire claims file in electronic records to the examiner who prepared the February 2014 VA opinion regarding the etiology of sleep apnea or, if that examiner is unavailable, to another suitably qualified VA examiner.  The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records and lay statements, with particular attention to the private sleep study dated July 2009.  The rationale for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion.  If additional examination is indicated, it should be scheduled in accordance with applicable procedures.  The examiner should provide an opinion addressing whether it is at least as likely as not that the Veteran's sleep apnea is related to service.

3. Thereafter, the Veteran should be afforded a VA examination to determine the current severity of his thoracolumbar spine disability.  In accordance with the latest worksheet for rating spine disorders, the examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of his current disorder.  The examiner must specify in the report that the claims file has been reviewed.

4. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures at once.

5. After completing any additional development deemed necessary, to include considering whether a current evaluation of the service-connected left shoulder disability is warranted, readjudicate the claims.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran 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 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).




______________________________________________
Nathan Kroes
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs