Citation Nr: 1550447 Decision Date: 12/02/15 Archive Date: 12/10/15 DOCKET NO. 13-35 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable rating for cholecystectomy residuals. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for a respiratory disorder, claimed as reactive airway disease, to include as due to asbestos exposure. 7. Entitlement to service connection for allergic rhinitis. 8. Entitlement to service connection for obstructive sleep apnea. 9. Entitlement to service connection for hemorrhoids. 10. Entitlement to service connection for a skin disability, claimed as tinea pedis, tinea corporis, and tinea cruris. 11. Entitlement to service connection for residuals of traumatic brain injury other than headaches. 12. Entitlement to service connection for headaches. 13. Entitlement to service connection for residuals of right eye trauma. 14. Entitlement to service connection for dry eye syndrome. 15. Entitlement to service connection for residuals of fractured ribs. 16. Entitlement to service connection for bilateral hearing loss. 17. Entitlement to service connection for erectile dysfunction. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to December 1991, and from November 1994 to April 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Some issues have been recharacterized to comport with the evidence of record. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2014. A transcript of the hearing is of record. The issues of entitlement to an initial compensable rating for cholecystectomy residuals, and service connection for GERD, allergic rhinitis, an acquired psychiatric disorder, right and left knee disabilities, a skin disability, hemorrhoids, a respiratory disability, traumatic brain injury residuals other than headaches, right eye trauma residuals, fractured ribs residuals, and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. Obstructive sleep apnea is attributable to the Veteran's active service. 2. Headaches are attributable to the Veteran's active service. 3. Dry eye syndrome is attributable to the Veteran's active service. 4. Erectile dysfunction is attributable to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b), 5121A (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for service connection for headaches are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b), 5121A (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. The criteria for service connection for dry eye syndrome are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b), 5121A (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 4. The criteria for service connection for erectile dysfunction are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b), 5121A (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Post-service medical evidence from the Veteran's private physician, Dr. J.L, reflects that the Veteran has been diagnosed with obstructive sleep apnea, dry eye syndrome, and erectile dysfunction. The Veteran also asserts that he has frequent headaches. He is competent to attest to the existence of headaches. Layno v. Brown, 6 Vet. App. 465 (1994). He asserts that each of these disabilities had their onset during his period of active service. Service treatment records (STRs) from November 2008 to January 2009 reflect treatment for headaches, dry eye syndrome, and erectile dysfunction. A February 2009 in-service sleep study showed that the Veteran had "very heavy snoring and obstructive apneas/hypopneas during sleep in the supine position only." These symptoms improved dramatically when the Veteran slept on his side. The overall rate of episodes of apnea and hypopnea was within normal limits; thus, the Veteran was diagnosed with "primary snoring," not obstructive sleep apnea. The Veteran was offered conservative measures to reduce his snoring, but cautioned to seek a formal sleep consult if these measures proved ineffective. The Veteran filed a claim for compensation for the claimed disabilities immediately following his retirement in April 2009. A June 2009 VA general medical examination noted that the Veteran's erectile dysfunction was treated effectively with prescription medication; that there was no current diagnosis of obstructive sleep apnea; and that the Veteran's reported headaches were "not migraine in nature." A July 2009 VA eye examination showed no evidence of dry eye syndrome at that time. A May 2010 record from the Veteran's private physician, Dr. J.L., indicated that the Veteran was being treated with prescription medication for dry eye syndrome and erectile dysfunction. A July 2011 private sleep study formally diagnosed the Veteran with obstructive sleep apnea. During his December 2014 hearing, the Veteran testified that he has continued to experience headaches since his discharge from service. On review, the Board notes that the Veteran was treated for erectile dysfunction during service; the June 2009 VA examiner noted that the Veteran was still being treated for the disorder at the time of the examination; and the Veteran continues to receive treatment in the private sector. In light of the continuous signs and symptoms of erectile dysfunction since service, service connection for erectile dysfunction is warranted. The Veteran was treated for headaches during service. Although there is no evidence of clinical treatment for headaches since service, the Veteran has submitted competent lay evidence that he continues to experience intermittent headaches. Layno, supra. Nothing in the record diminishes the credibility of the Veteran's account. When reasonable doubt is resolved in favor of the Veteran, service connection for headaches is warranted. The Veteran was treated for dry eye syndrome during service. Although dry eye syndrome was not noted on the July 2009 VA eye examination, the Veteran asserts that he has experienced dry eye syndrome since service. He has received treatment in the private sector for dry eye syndrome since at least May 2010, just over one year from his discharge from service. When reasonable doubt is resolved in favor of the Veteran, service connection for dry eye syndrome is warranted. Although the Veteran's February 2009 sleep study did not result in a formal diagnosis of sleep apnea, the Board notes that the Veteran exhibited very intense snoring while sleeping on his back, and had a high rate of apneas and hypopneas while supine. These symptoms generally resolved when the Veteran slept on his side, which may have contributed to the normal overall apnea/hypopnea rate. It is notable that the Veteran was cautioned to return for a formal sleep consult if conservative measures for resolving his snoring did not improve. The Veteran was not formally diagnosed with sleep apnea until July 2011, approximately two years after his discharge from service. Despite the negative sleep study in service, the evidence of symptoms of obstructive apnea during service (although prior to a formal diagnosis) and a showing of continuous signs and symptoms of obstructive sleep apnea since service means that the evidence is at least in equipoise as to whether the Veteran's obstructive sleep apnea is attributable to his service. Under such circumstances, reasonable doubt is to be resolved in favor of the Veteran. Service connection for obstructive sleep apnea is warranted. ORDER Service connection for obstructive sleep apnea is granted. Service connection for headaches is granted. Service connection for dry eye syndrome is granted. Service connection for erectile dysfunction is granted. REMAND VA examinations conducted in June 2009, July 2009, and August 2009 addressed the remaining service connection claims on appeal; however, the examination reports are not adequate for purposes of determining entitlement to service connection. In some cases, the conclusions of the VA examiners are not reasonably based on the evidence of record, or are unsupported by adequate rationale; in others, newly received evidence warrants a re-examination. In all cases, remand is required so that new VA examinations may be scheduled. The Veteran testified during his December 2014 hearing that he has pain in the area of his cholecystectomy. He has not been afforded a VA examination to determine the severity of his cholecystectomy residuals; this must be accomplished upon remand. During his December 2014 hearing, the Veteran indicated that he receives treatment from the VA Pittsburgh Healthcare System. His VA treatment records must be obtained. 38 C.F.R. § 3.159(c)(1); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran has also received private sector treatment from Dr. J.L. since his discharge from service. Dr. L.'s records must be obtained, pending any necessary release from the Veteran, as they are likely relevant to the Veteran's appeal. 38 C.F.R. § 3.159(c)(1). During his hearing, the Veteran asserted that his GERD may be the result of his service-connected cholecystectomy, and that his hearing loss may be the result of his service-connected tinnitus. Appropriate notice as to the secondary service connection claims is required. 38 U.S.C.A. § 5103. Accordingly, the case is REMANDED for the following action: 1. Provide proper notification and all required development with respect to the claims for service connection for GERD and hearing loss on a secondary basis. 2. Obtain all VA treatment records since April 2009. 3. Contact the Veteran and request that he provide written authorization to obtain records from Dr. L. and any other non-VA medical professionals who have treated him for the disabilities on appeal. Upon receipt of such, take appropriate action to contact the identified providers and request complete records related to the disabilities on appeal. In the case of Dr. L., all treatment records since April 2009 must be requested. The Veteran must be informed that in the alternative he may obtain and submit the records himself. If such records are unavailable, the record must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 4. Schedule the Veteran for a VA orthopedic examination by an appropriate medical professional. The entire record must be reviewed by the examiner. The examiner is to state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right and left knee disabilities are related to service. The examiner must note and comment upon Dr. L.'s diagnosis of arthritis of both knees, as well as the reports of knee pain during service. The examiner is also to state whether it is at least as likely as not that the Veteran has residuals of an in-service rib fracture, and identify all such residuals. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Schedule the Veteran for a VA digestive disorders examination by an appropriate medical professional. The entire record must be reviewed by the examiner. The examiner is asked to state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD is related to his service, or, alternatively, whether it is caused or aggravated by his residuals of an in-service cholecystectomy. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation of GERD by the service-connected residuals of a cholecystectomy is found, the examiner must attempt to establish a baseline level of severity of the service-connected GERD prior to aggravation by the service-connected residuals of a cholecystemctomy The examination report must include a complete rationale for any opinion expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Schedule the Veteran for a VA examination by an appropriate medical professional as to the nature and etiology of his allergic rhinitis and respiratory disorder, manifested by shortness of breath. The entire record must be reviewed by the examiner. The examiner must indicate whether the Veteran has a disability manifested by shortness of breath or difficulty breathing, and state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is related to the Veteran's service, to include his documented exposure to asbestos. The examiner's attention is drawn to the records submitted by Dr. L., showing a diagnosis of chronic obstructive pulmonary disorder. The examiner must also indicate whether the Veteran has allergic rhinitis, and state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is related to the Veteran's service. The examiner's attention is drawn to the service treatment records showing a diagnosis of allergic rhinitis. If the Veteran's symptoms are not active at the time of the examination, the examiner is asked to make a decision upon the evidence of record, or reschedule the Veteran for an examination during a time of year when his symptoms tend to be active. The examination report must include a complete rationale for any opinion expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Schedule the Veteran for a VA examination by an appropriate medical professional as to the nature and etiology of his skin disability, to include tinea pedis, tinea corporis, and tinea cruris. The entire record must be reviewed by the examiner. The examiner must identify all skin disabilities and state whether they are at least as likely as not (a 50 percent or greater probability) related to the Veteran's service. If the Veteran's symptoms are not active at the time of the examination, the examiner is asked to diagnose the Veteran's skin disability based on the clinical notes and the Veteran's descriptions of his symptoms, if feasible. If not, the Veteran must be re-examined at time when his symptoms are active. The examination report must include a complete rationale for any opinion expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 8. Schedule the Veteran for a VA examination by an appropriate medical professional as to the nature and etiology of his hemorrhoid disability. The entire record must be reviewed by the examiner. The examiner must state whether the Veteran's hemorrhoids are at least as likely as not (a 50 percent or greater probability) related to the documented episode of hemorrhoids in service. If the Veteran's hemorrhoids are not active at the time of the examination, the examiner is asked to base a current diagnosis of hemorrhoids from the medical evidence of record, if feasible. The examination report must include a complete rationale for any opinion expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 9. Schedule the Veteran for a VA eye examination by an appropriate medical professional as to the nature and etiology of his right eye disability. The entire record must be reviewed by the examiner. For all right eye disabilities other than dry eye syndrome, the examiner is asked to state whether it is at least as likely as not (a 50 percent or greater probability) that the disability is related to trauma to the eye during service. The examiner's attention is drawn to the service treatment records, which document several episodes of eye trauma and conjunctivitis during service, as well as the Veteran's separation physical showing a cornea disability at service discharge. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 10. Schedule the Veteran for a VA examination by an appropriate medical professional as to his claim for service connection for traumatic brain injury residuals. The entire record must be reviewed by the examiner. The examiner is asked to review the record and determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran experienced traumatic brain injury during service. The examiner's attention is drawn to a February 1995 service treatment record documenting a physical assault upon the Veteran, which included a head injury. If the examiner determines that the Veteran did have a traumatic brain injury during service, he or she is asked to identify all current residuals of that injury, other than the already service-connected headaches. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 11. Afford the Veteran an examination to assess the current severity of his service-connected cholecystectomy residuals. The examiner must review the record in connection with the examination. After soliciting the Veteran's current symptomatology and related treatment, the examiner is to conduct all indicated studies to ascertain the current severity of the Veteran's cholecystectomy residuals. 12. Schedule the Veteran for a VA audiological examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to state whether the Veteran's hearing acuity meets the definition of hearing loss for VA compensation purposes, and, if so, must state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss is related to his service, or, alternatively, whether it is caused or aggravated by his service-connected tinnitus. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If the examiner finds that the Veteran's service-connected tinnitus aggravated the Veteran's hearing loss, the examiner must attempt to establish a baseline level of severity of the hearing loss prior to aggravation by the service-connected tinnitus. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 13. Schedule the Veteran for a VA mental disorders examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has an acquired psychiatric disability that is related to service. The examiner's attention is drawn to the February 2008 STR reflecting poor work performance and alcohol abuse, as well as the Veteran's competent statements as to mild feelings of depression since service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 14. Then, readjudicate the appeal. If any of the benefits sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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 matters 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 (Court) 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. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs