Citation Nr: 1624232 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 10-20 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected hypertension. 3. Entitlement to an initial rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran had active service from February 1979 to September 1984. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado and a March 2008 rating decision issued by the RO in San Diego, California. Jurisdiction of this case belongs to the RO in Wichita, Kansas. This case was previously before the Board in February 2014. In April 2011 the Veteran testified during a Board hearing at the RO in Wichita, Kansas before the undersigned. A transcript of that hearing is of record. The issue of entitlement to service connection for left eye disability was remanded by the Board in February 2014. A January 2015 VA Appeals Management Center (AMC) decision granted service connection for macular scarring of the left eye, and assigned a rating of 10 percent, effective December 2, 2005. The Veteran has not expressed disagreement with the January 2015 RO decision. A May 2015 RO decision denied the Veteran's claim of entitlement to service connection for peripheral neuropathy of the right and left upper and lower extremities. The Veteran has not expressed disagreement with the May 2015 RO decision. The claim of entitlement to service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Sleep apnea did not have onset during the Veteran's active service, was not caused by his active service, and was not caused or aggravated by service-connected hypertension. 2. The Veteran's hypertension is not productive of diastolic pressure that is predominantly 110 or more or systolic pressure that is predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 2. The criteria for an initial evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code 7101 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that service connection is warranted for sleep apnea, as caused or aggravated by service connected disability, specifically, his service-connected sleep apnea. During his hearing, held in April 2011, the Veteran indicated that his private physician had stated that his sleep apnea was related to his hypertension. The Board notes that although additional evidence has been received since the most recent supplemental statement of the case, dated in January 2015, a prospective waiver of RO review was received that same month (i.e., in January 2015). Accordingly, a remand is not required. See 38 C.F.R. § 20.1304(c) (2015). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2015). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014 & Supp. 2015). Service connection is currently in effect for hypertension, and macular scarring of the left eye. The Veteran's service treatment records do not show any treatment, complaints, or diagnoses involving sleep symptoms. His separation examination report, dated in August 1984, does not note any relevant symptoms or conditions. In the associated "report of medical history," he denied having a history of frequent trouble sleeping. As for the post-service medical evidence, VA and non-VA reports, dated beginning in 1999, note sleep apnea. A report from a private physician, C.S., M.D., dated in April 2014, notes an at-least ten-year history of sleep apnea. In February 2014, the Board remanded this claim. The Board directed, in relevant part, that the Veteran be afforded examinations, to include obtaining an etiological opinion for his sleep apnea claim. A VA hypertension disability benefits questionnaire (DBQ), dated in May 2014, shows the following: the Veteran's claims file had been reviewed. The Veteran's diagnoses included hypertension, with a date of onset of 1984. The Veteran took continuous medication for control of his hypertension symptoms, specifically, lisinopril, 40 milligrams (mg) qd (every day) with diuretic (HCTZ) (hydrochlorothiazide). A VA sleep apnea DBQ, dated in May 2014, shows the following: the Veteran's claims file had been reviewed. The diagnosis was sleep apnea, with a date of onset of 1996. The examiner concluded that the Veteran's sleep apnea is less likely as not (less than 50 percent probability) incurred in or caused by his service. The examiner explained that there was no indication of sleep apnea or symptoms in the Veteran's service treatment records, and that OSA (obstructive sleep apnea) was diagnosed many years after active duty. The examiner further concluded that there is no medical or etiological nexus evidence to show that the Veteran's hypertension had aggravated or caused his sleep apnea. The examiner noted that the Veteran's hypertension history showed that it was well-controlled. The Board finds that the claim must be denied. With regard to the possibility of direct service connection, the Veteran's service medical records do not show that sleep symptoms, or a sleep disorder, was noted during service, or shortly thereafter. The Veteran's sleep apnea was not diagnosed until well after active duty. The post-service private medical records do not contain any competent evidence to show a relationship between sleep apnea and the Veteran's service. The only competent opinion is the May 2014 VA opinion, which indicates that there is no relationship between the Veteran's sleep apnea and his military service. This opinion is considered highly probative, as this opinion is shown to have been based on a review of the Veteran's claims file, and as it contains a sufficient explanation for the conclusion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board further finds that the preponderance of the competent and credible evidence does not show that the sleep apnea was caused by or aggravated by his service-connected hypertension. There is no competent medical opinion indicating in support of this claim. The only competent opinion is the May 2014 VA opinion, in which the examiner specifically concluded that no such relationship exists. This opinion is considered highly probative, as this opinion is shown to have been based on a review of the Veteran's claims file, and as it contains a sufficient explanation for the conclusion. Id. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Veteran's assertion that his sleep apnea is secondary to his hypertension has been considered. To the extent that is an opinion of a nexus between these conditions, the Board finds his statements are not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. One factor for consideration is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Whether hypertension can cause or aggravate sleep apnea is not a question that can be determined by mere observation and is not within the realm of knowledge of a layperson. While the Veteran is competent to report sleep problems, the record does not demonstrate that the Veteran has any special training or acquired any medical expertise in diagnosing sleep disorders. Therefore, the Board finds that the Veteran's opinion in this regard is not competent evidence and therefore not probative of any fact in this case. As the preponderance of evidence is unfavorable to the claim, service connection for sleep apnea is not warranted. There is no reasonable doubt to be resolved. See 38 U.S.C.A. § 5107(b). II. Increased Initial Evaluation - Hypertension In May 2006 the RO granted the Veteran service connection for hypertension and assigned a noncompensable rating, effective December 2, 2005. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 10 percent .. In May 2007, the RO granted the claim, to the extent that it assigned a 10 percent rating for hypertension, effective December 2, 2005. The Veteran is appealing the original assignments of disability evaluations following awards of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Under Diagnostic Code 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension), a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure which is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. Id. A VA hypertension examination report, dated in March 2006, shows that the examiner stated that the Veteran's claims file had been reviewed. The report notes a history of hypertension since at least 1982 and that the Veteran has been on therapy since most of that time. He was noted to be taking medications that included lisinopril, 40 mg. per day. His blood pressure readings are discussed infra. A VA hypertension DBQ, dated in May 2014, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes that the Veteran does not have a history of diastolic blood pressure evaluations of predominantly 100 or more. His blood pressure readings are discussed infra. The Veteran took continuous medication for control of his hypertension symptoms, specifically, lisinopril, 40 mg. qd (every day) with hydrochlorothiazide (HCTZ). The diagnosis was hypertension, with a date of onset of 1984. Overall, the evidence does not show diastolic pressure which is predominantly 110 or more, or systolic pressure that is predominantly 200 or more. Representative blood pressure readings during the appeal period have included the following: 135/78, 134/69 (10/19/ 2005); 169/101, 163/89, 156/90 (March 2006); 168/88, 156/90 (March 2006); 132/76, 130/74, and 130/72 (March 2006 VA examination); 110/70 (1/24/2008); 118/74 (April 1, 2011); 130/78 (8/10/2012); 118/78 (6/28/2013); 130/67, 136/71, 126/68 (May 2014 VA hypertension examination). Similarly, in the April 2014 letter from the Veteran's private physician it was noted that the Veteran took Lisinopril for his high blood pressure and that his blood pressure was 142/70 "with systolic blood pressures in the 110 to 124 range" (in March 2014). The Board finds that the claim must be denied. The Veteran is shown to be taking medication for control of his symptoms. However, the blood pressure readings do not show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Thus, neither the Veteran's diastolic pressure readings, or systolic pressure readings, predominantly meet the scheduler criteria for an initial evaluation in excess of 10 percent under DC 7101. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In deciding the Veteran's increased initial evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119, 126 (1999), and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluation should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased initial evaluation is warranted. In reaching this decision, the Board has considered the oral and written testimony of the Veteran. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falcone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this case, the Board has determined that the medical evidence is more probative of the issues, and that it outweighs the lay statements regarding the extent of the disability in issue. Accordingly, the Veteran's claim must be denied. Consideration has also been given to whether the scheduler evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-scheduler evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015); Barringer v. Peace, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2015); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. A higher evaluation is provided for certain manifestations of the service-connected hypertension disability, which have been discussed. The evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms, and the level of functioning. In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the evidence of record does not show that his disability as caused him to miss work, or that it has resulted in any hospitalization or surgery. A decision of the Social Security Administration (SSA), dated in April 2004, shows that the Veteran was determined to have been disabled as of October 2003, with a primary diagnosis of disorders of the back (discogenic and degenerative), and a secondary diagnosis of diabetes mellitus. The May 2014 VA hypertension DBQ shows that the examiner stated that there was no impact on the Veteran's ability to work. The Board finds, therefore, that the Veteran's service-connected disability in issue does not result in marked interference with employment or frequent periods of hospitalization, nor are there "other factors" shown to warrant an extraschedular rating. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to the service-connected disability in issue. The SSA's April 2004 decision shows that the Veteran was determined to have been disabled with a primary diagnosis of disorders of the back (discogenic and degenerative), and a secondary diagnosis of diabetes mellitus. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In reaching both of these decisions, the Board considered the benefit-of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claims, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2014 & Supp. 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has not indicated that such records exist, and all pertinent records have been obtained. The Veteran has been afforded examinations, and an etiological opinion has been obtained. In February 2014, the Board remanded the claims. The Board directed that the Veteran be asked to identify all VA and private health care providers who have treated him for any relevant symptoms after April 2011. In March 2014, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's instructions. Additional VA records, dated to 2015, were obtained. The Board also directed that any outstanding SSA disability records concerning the Veteran, and the Veteran's treatment records from the Colorado Presbyterian Hospital in Denver, be obtained. In response, the Veteran submitted a release of records form (VA Form 21-4142) for CIMS, and these records have been obtained. The SSA's records were also obtained. Finally, the Board directed that the Veteran be afforded examinations, and that an etiological opinion be obtained with regard to the claim for service connection for sleep apnea. In May 2014, this was done. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for sleep apnea is denied. An initial evaluation in excess of 10 percent for hypertension is denied. REMAND In May 2014 the Veteran underwent a VA examination that was to address the medical matters raised by the issue of entitlement to service connection for erectile dysfunction. The Board observes that the May 2014 VA examiner (PN, ARNP) did not address the matter as to whether the Veteran's erectile dysfunction was aggravated (worsened) by his service-connected hypertension. Accordingly, the Board finds that the Veteran's claims file should be returned to the May 2014 VA examiner for the purposes of preparing an addendum that addresses the question of whether the Veteran's erectile dysfunction is aggravated by service-connected hypertension disability. See 38 U.S.C.A. § 5103A(d) (West 2014 & Supp. 2015); Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet App 303 (2007) (holding that when VA undertakes to provide the Veteran with an examination, it must insure the examination is adequate). Accordingly, the case is REMANDED for the following action: 1. The AOJ should furnish the Veteran's claims file to the examiner who conducted the May 2014 VA hypertension examination (PN, ARNP) and request that the examiner provide an addendum containing an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction has been aggravated (made worse) by service-connected hypertension disability (including medications taken for the hypertension disability). The examiner(s) should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If the May 2014 VA examiner is not available, the AOJ should request another qualified examiner to review the claims file (and schedule another examination, if necessary) and provide the requested opinion. 2. The AOJ should then, based on all the evidence of record, readjudicate the issue on appeal. If the benefit sought is not granted, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. 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). ______________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs