Citation Nr: 1634368 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 09-04 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD). 3. Entitlement to a rating in excess of 20 percent for a left shoulder disability. 4. Entitlement to a rating in excess of 10 percent for a left knee disability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to May 1992. This case comes before the Board of Veterans' Appeals (the Board) on appeal from April 2008 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). In the substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. However, in correspondence received in March 2015, the Veteran cancelled the hearing request. During the course of the appeal, entitlement to a total disability rating based on individual unemployability (TDIU) was denied in a June 2013 rating decision, and the Veteran filed a notice of disagreement. While the Veteran did not respond to a statement of the case, the Board recognizes that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the claim for TDIU is on appeal. The issues of entitlement to service connection for sleep apnea; entitlement to higher ratings for left knee and left shoulder disabilities; and entitlement to TDIU are REMANDED to the Agency of Original Jurisdiction. FINDING OF FACT The preponderance of the evidence weighs against associating the Veteran's currently diagnosed respiratory disability, to include COPD, with an incident of his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability, claimed as COPD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated in April 2009 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations, and VA and private health records. VA's duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, there is no reasons or bases requirement imposed on examiners. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Rather, a medical opinion is adequate when it is based on consideration of a Veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Ardison v. Brown, 6 Vet. App. 405 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991). Concerning the issue of entitlement to service connection for a respiratory disability, the Board finds that the VA examinations provided are adequate. The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 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 or aggravated in service. 38 C.F.R. § 3.303(d) (2015). To establish a service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2015). Secondary service connection may also be established for a non-service connected disability which is aggravated by a service-connected disability. In that instance, the Veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2015); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In June 1984, while on active duty, the Veteran was treated for allergic rhinitis. A July 1984 service treatment record shows a diagnosis of upper respiratory infection. An X-ray found hypoinflation of the lungs. In June 1985, the Veteran was treated for allergic rhinitis. He was treated for chronic rhinitis in May 1989. A service X-ray of the chest taken in May 1991 was normal. A VA examination report from August 1992 indicates that the Veteran did not have a history of asthma. The Veteran reported having a chronic cough. In January 1994, the Veteran was treated for acute bronchitis. The Veteran was treated for a persistent cough in April 1997. The assessment was bronchospasms post bronchitis. A chest X-ray taken in April 1997 shows that the Veteran's lungs appeared free of nodular lesions and infiltrates. In April 1999, October 1999, and January 2000, the Veteran was treated for bronchitis. A July 2000 private treatment record contains a diagnosis of bronchitis. An X-ray of the chest was normal. A private treatment record form March 2000 shows a diagnosis of asthma. An August 2003 private treatment record labeled "NEW PATIENT VISIT" contains the Veteran's reported history of having chronic problems with sinusitis and bronchitis since 1986. A VA treatment record form August 2003 indicates that the Veteran had no history of asthma. A September 2003 private treatment record contains a notation that the Veteran had asthma. A VA progress note from October 2003 contains the Veteran's report that he had been diagnosed with asthma by a private treatment provider. A January 2009 VA treatment record shows that the Veteran had a new diagnosis of COPD. A letter submitted in August 2011 by A.F., a former work supervisor for the Veteran, shows that the Veteran had problems with his breathing during the years 1992 to 1998. Another statement submitted by the Veteran's spouse states that the Veteran had trouble breathing. At a May 2012 VA examination, it was noted that the Veteran was diagnosed with asthma in 2002. According to the examination report, the Veteran denied any treatment for asthma while he was on active duty. He stated that while on active duty he was treated for allergic rhinitis and chronic sinusitis only. The examiner did not offer an etiology opinion because the examiner did not have access to the Veteran's claims file. In June 2012, a VA examiner reviewed the claims file and noted that the Veteran was treated for upper respiratory infection and hypoinflation of the lungs while in service. The examiner opined that the Veteran's current respiratory condition was less likely than not incurred in or caused by service. The examiner stated that the Veteran's service medical records only indicated treatment for allergic rhinitis. The examiner opined that it was more likely than not that the Veteran developed his asthmatic condition following separation from service. In November 2012, a VA examiner reviewed the claims file and the May 2012 VA examination report. The examiner noted that the Veteran was treated for an upper respiratory infection and hypoinflation of the lungs while in service. The examiner opined that it was less likely than not that the Veteran's COPD was proximately due to or the result of the service-connected sinusitis and allergies. It was noted that a review of the medical literature showed no credible, peer reviewed studies that supported the contention that sinusitis or allergic rhinitis could induce the subsequent development of COPD. The examiner remarked that medical literature stated that the primary cause of COPD was exposure to tobacco smoke, as cigarette smoking induced macrophages to release neutrophil chemotactic factors and elastases, which lead to tissue destruction. Another VA examiner reviewed the claims file in March 2013 and opined that the Veteran's COPD was not related to service or secondary to allergic rhinitis. The examiner specified that there was no correlation between sinusitis or allergic rhinitis and the further development of COPD. In this case, service connection has previously been established for sinusitis with allergic rhinitis. The Veteran is currently assigned a 30 percent rating for symptoms associated with service-connected sinusitis with allergic rhinitis. However, the Board finds that the preponderance of the evidence weighs against an award of service connection for any other respiratory disability, either as directly related to service or as secondary to the service connected sinusitis with allergic rhinitis. The Board has carefully considered the August 2003 private treatment record which contains the Veteran's reported history of having chronic problems with sinusitis and bronchitis since 1986. However, as the record was labeled "NEW PATIENT VISIT," the recorded history does not appear to be made from the treatment provider's own observations. Additionally, the treatment record does not suggest that any other records were reviewed. Thus, the indication that the Veteran had chronic problems with bronchitis "since 1986" appears to be a recitation of the Veteran's self-reported history. A medical evaluation that is merely a recitation of a Veteran's self-reported and unsubstantiated history has little probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). Conversely, in June 2012, November 2012, and March 2013, VA examiners considered the Veteran's theories that his present respiratory disability was either caused by service-connected sinusitis with allergic rhinitis or directly by his active duty service, and the examiners opined that it was less likely than not. The Board places great weight on the opinion of the VA examiners, as the examiners had the medical training and expertise necessary to offer a medical opinion in such a complex matter. Significantly, the examiners gave various reasoning to support their opinions, to include specific reference to medical literature. In addition, the Veteran's theories of entitlement were specifically addressed. Taken as a whole, the Board finds the June 2012, November 2012, and March 2013 VA examiner opinions to be more probative and persuasive than the other opinions of record. The VA examinations agreed that the current respiratory disability was less likely due to service or the service-connected sinusitis with allergic rhinitis. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran here has a complex constellation of respiratory issues. As to the specific issues in this case, whether a respiratory disability other than sinusitis with allergic rhinitis was caused by active service or is otherwise related to service or service-connected disability, those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide such an opinion. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The Board finds that the preponderance of the evidence is against a finding of a causal connection between the Veteran's service and a present respiratory disability other than sinusitis with allergic rhinitis. The Board is sympathetic to the Veteran in that it is clear he sincerely believes his respiratory problems were caused by either service or the service-connected sinusitis with allergic rhinitis. However, the evidence of record does not support that contention. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for peripheral neuropathy, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a respiratory disability, claimed as COPD, is denied. REMAND In November 2003, the Veteran underwent a sleep study. A diagnosis of moderate obstructive sleep apnea and hypopnea syndrome was given. The Veteran claims that the obstructive sleep apnea was caused by the service-connected sinusitis with allergic rhinitis. The Board finds that the Veteran should be provided a VA examination for an etiology opinion regarding sleep apnea. McLendon v. Nicholson, 20 Vet App. 79 (2006). The Veteran last underwent VA examination of the left knee and left shoulder in September 2011. Since that time, he has consistently complained of increased symptoms. Where the evidence of record does not show the current state of the Veteran's disability, a more current VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). In light of the increased symptomatology reported, and the lack of accompanying contemporaneous medical records, remand is required to obtain updated treatment records and provide the Veteran an updated VA examination that indicates the current symptomatology of the left knee and left shoulder disabilities. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment he has received for the claims on appeal, and make arrangements to obtain all records not already associated with the claims file, to include updated records of VA treatment. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of claimed sleep apnea. The examiner must review the claims file and should note that review in the report. All tests and studies deemed necessary by the examiner must be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to offer an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran has sleep apnea that was incurred or aggravated as a result of active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is due to or the result of service-connected sinusitis with allergic rhinitis. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected sinusitis with allergic rhinitis. The examiner should consider the Veteran's statements that service-connected sinusitis with allergic rhinitis caused sleep apnea. A complete rationale must be given for all opinions and conclusions. 3. Schedule the Veteran for a VA joints examination to determine the current nature and severity of service-connected left knee and left shoulder disabilities. The examiner must review the claims file and should note that review in the report. All appropriate tests and studies must be accomplished, and all clinical findings must be reported in detail. The medical and lay evidence of record should be taken into account and a rationale must be provided for any opinion expressed, to include reference to pertinent evidence where appropriate. Concerning the left knee, the examiner should specifically state range of motion for active and passive motion and on weight bearing. The examiner should comment on whether there is any additional loss of function due to weakened movement, excess fatigability, incoordination, pain on use, or on flare up for the left knee. The examiner should describe the severity of any recurrent subluxation or lateral instability of the left knee. The examiner should indicate if replacement of the left knee is medically indicated. Concerning the left shoulder, examination findings should be reported to allow for application of all potential VA rating criteria for the shoulder disability. Range of motion testing should be conducted, and the examiner should report any additional functional loss due to pain, weakness, fatigue, and incoordination, or during flare-ups. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work, and what accommodations would be necessary due to the service-connected disabilities. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs