Citation Nr: 1637040 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 10-36 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for glaucoma, claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to May 1974. He died in May 2012 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for diabetes mellitus, peripheral neuropathy of the bilateral lower extremities, coronary artery disease, erectile dysfunction, hyperlipidemia, hypertension, sleep apnea, glaucoma, and obesity. Thereafter, the Veteran perfected an appeal of such issues. However, prior to the promulgation of a decision in his appeal, the Veteran died in May 2012. As such, in July 2012, the Board dismissed his appeal. Later in July 2012, the appellant requested that she be substituted into the Veteran's claims pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat 4145, 4151, (2008) (codified at 38 U.S.C.A. § 5121A). Under this statute, an eligible person may process any pending claims to completion following the death of a Veteran. Such request must be filed not later than one year after the date of the Veteran's death and, as provided for in the provision, a person eligible for this substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . . ." Id.; 38 U.S.C.A. § 5121A (West 2014). In an August 2012 letter to the appellant, the agency of original jurisdiction (AOJ) accepted the appellant's request to act as a substitute on behalf of the Veteran for this appeal, which was pending at the time of his death. In January 2014, the Board denied all of the claims on appeal. The appellant appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2015, the parties entered into a Joint Motion to Terminate the Appeal in Part. This motion stipulated that the Veteran was exposed to herbicide agents during his service aboard the USS Vancouver, and agreed that VA would grant the claims of service connection for diabetes mellitus and coronary artery disease as due to exposure to herbicides. The appellant agreed to terminate her appeal with respect to service connection for erectile dysfunction, hyperlipidemia, and obesity. The parties then agreed that the claims for service connection for peripheral neuropathy of the bilateral lower extremities, hypertension, glaucoma, and obstructive sleep apnea were to remain in appellate status, as consideration of the claims as secondary to the newly service-connected diabetes mellitus by the Board was warranted. The Court implemented the Joint Motion to Terminate the Appeal in Part in a February 2015 Joint Motion for Partial Vacatur and Remand, which remanded the issues of service connection for peripheral neuropathy of the bilateral lower extremities, hypertension, glaucoma, and obstructive sleep apnea to the Board for readjudication consistent with its Order. The matters were remanded in July 2015 for additional development. While on remand, service connection for peripheral neuropathy of the bilateral lower extremities was granted in a January 2016 rating decision. Therefore, as such is a full grant of the benefits sought on appeal with regard to that claim, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The remaining issues listed on the title page of this decision now return to the Board for further appellate review. The July 2015 remand also took jurisdiction of the appellant's claims for higher initial ratings for the service-connected diabetes mellitus and coronary artery disease, and remanded them for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Although a SOC has not yet been issued, according to the Veterans Appeals Control and Locator System (VACOLS) the claims are still being developed by the AOJ. As a result, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issues of entitlement to service connection for hypertension and glaucoma are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident in service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a July 2008 letter, sent prior to the initial unfavorable decision issued in February 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The appellant has not identified any additional, outstanding records that have not been requested or obtained. A VA medical opinion, addressing the etiology of the Veteran's sleep apnea, was obtained in January 2016. The Board finds that the VA opinion is adequate to decide the issue, as it is predicated on a review of the record, which includes the appellant's contentions, as well as examination of applicable medical literature. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. As indicated previously, in July 2015, the Board remanded the issue in order to allow the AOJ to readjudicate it on a secondary basis in light of the recent grant of service connection for diabetes mellitus. The AOJ appropriately developed the issue, including obtaining a VA medical opinion in January 2016, and readjudicated the matter accordingly in a supplemental statement of the case dated in January 2016. Therefore, the Board finds that the AOJ has substantially complied with the July 2015 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of the claim. II. Analysis Under applicable law, service connection is warranted if the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). However, the Board notes that the appellant does not assert, and the record does not reflect, that the Veteran's sleep apnea had its onset during service or is otherwise directly related to his service, to include his acknowledged in-service herbicide exposure. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Rather, the appellant asserts that the Veteran's sleep apnea was proximately due to, or aggravated by, his service-connected diabetes mellitus. Brief of Appellant at 12, Johnson v. McDonald, No. 14-0686 (Vet. App. February 3, 2015). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was diagnosed with "severe" obstructive sleep apnea by polysomnogram in February 2000. At that time, the Veteran reported a 3 to 4 year history of daytime somnolence, with witnessed episodes of snoring and apnea during sleep. A February 2008 letter from the Veteran's private physician, Dr. M.O., states that the Veteran "suffers ... symptoms due to Diabetes Mellitus such as ... Sleep Apnea [sic]." A VA medical opinion was obtained in January 2016. The report indicates that the examiner, a medical doctor, reviewed the record in its entirety and consulted medical literature before finding that the Veteran's sleep apnea was neither proximately due to, nor aggravated by, his service-connected diabetes mellitus. The examiner pointed out that the Veteran had obstructive sleep apnea which is "by definition caused by an anatomic obstruction or collapse of the upper airways during sleep." Such obstructions are caused by obesity, obstruction of the nasal passages with adipose tissue, or anatomic positioning resulting in obstruction. The "endocrine disorder of Diabetes Mellitus, Type II [sic] less than likely had any effect on anatomic obstruction of the upper airways during sleep to prevent airflow or breathing." The examiner went on to point out that the "most common contributing factor to the Veteran's obstructive sleep apnea, excessive weight, was documented at 239 lbs at the time of the ... Polysomnogram [sic]." Therefore, the Veteran's sleep apnea was most likely related to obesity-related obstruction of the upper airway, correlating to the progressive weight gain documented in the VA clinical notes. The opinion of the January 2016 VA examiner was provided after a review of the record and appropriate medical literature. It is highly probative as it reflects consideration of all relevant facts, and the examiner provided a detailed rationale for the conclusion reached. See Nieves-Rodriguez, supra (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl, supra. Conversely, the February 2008 statement from the Veteran's private physician is a conclusory statement and is not supported by rationale or reasoned medical explanation. The Court has held that a medical opinion must offer clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Id. Therefore, the February 2008 statement is afforded no probative weight. To the extent that the appellant contends on her own behalf that the Veteran's sleep apnea was proximately due to, or aggravated by, his service-connected diabetes mellitus, the Board notes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds that the question regarding the potential relationship between the Veteran's sleep apnea and his diabetes mellitus is complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board accords her statements regarding the etiology of the Veteran's sleep apnea little probative value, as she is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Therefore, the Board finds that sleep apnea is not shown to be proximately due to, or aggravated by, the Veteran's service-connected diabetes mellitus. Consequently, service connection on a secondary basis is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the appellant's claim of entitlement to service connection for sleep apnea. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for obstructive sleep apnea, claimed as secondary to service-connected diabetes mellitus, is denied. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's remaining claims so that she is afforded every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A January 2016 VA medical opinion found that the Veteran's glaucoma was less likely than not proximately due to, or aggravated by, his service-connected diabetes mellitus, because "there is currently no medical evidence linking diabetes and glaucoma at the time of this opinion." The opinion does not address the February 2008 statement by the Veteran's private physician, Dr. O., who characterized glaucoma as a "symptom" of the Veteran's diabetes mellitus, nor does it appropriately address the question of whether glaucoma was aggravated beyond its natural progress by the Veteran's diabetes mellitus. As a result, it is necessary to obtain a clarifying opinion from the examiner. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Similarly, a January 2016 VA medical opinion found that the Veteran's hypertension was less likely than not proximately due to, or aggravated by, his service-connected diabetes mellitus, because the Veteran's hypertension was diagnosed in 1992, well before he was diagnosed with diabetes mellitus in 1997 or 1998. The report then goes on to state that the private clinical notes documenting the Veteran's treatment for hypertension "indicate that the hypertension was neither aggravated or caused by Diabetes mellitus, type II [sic]." This conclusory statement as to the question of aggravation is inadequate for purposes of deciding the claim. See Nieves-Rodriguez, supra; Stefl, supra. As a result, it is necessary to obtain a clarifying opinion from the examiner. Barr, supra. Furthermore, with regard to hypertension, the Board notes that the Veteran is presumed to have been exposed to herbicides coincident with his service in Vietnam waters. In this regard, although VA has not conceded a relationship between hypertension and Agent Orange, it is significant to note that prior to 2006, the National Academy of Sciences (NAS) placed hypertension in the "Inadequate or Insufficient Evidence" category. However, in its update in 2006, NAS elevated hypertension to the "Limited or Suggestive Evidence" category. Update 2012 provides the history of NAS changing the categorization of hypertension beginning in its 2006 Update and subsequent Updates. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). Further, Update 2012 notes that NAS has defined this category of limited or suggestive evidence to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." Id. at 20,309. Consequently, the addendum opinion should also address such theory of entitlement. Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA examiner who offered the etiological opinion as to the Veteran's glaucoma in January 2016. The record and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the record and the Remand have been reviewed. If the January 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's glaucoma was caused or aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected diabetes mellitus. In reaching these conclusions, the examiner should consider and address the February 2008 statement by the Veteran's private physician, Dr. O., identifying glaucoma as a "symptom" of diabetes mellitus. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner should provide complete rationale for the conclusions reached. 2. Return the record to the VA examiner who offered the etiological opinion as to the Veteran's hypertension in January 2016. The record and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the record and the Remand have been reviewed. If the January 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's hypertension was aggravated (permanently worsened beyond normal progress of the disorder) by his service-connected diabetes mellitus. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The examiner should also offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is related to his in-service herbicide exposure. In this regard, the examiner is requested to discuss NAS's aforementioned placement of hypertension to the "Limited or Suggestive Evidence" category beginning with Update 2006. The examiner should provide complete rationale for the conclusions reached. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs