Citation Nr: 1638237 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 10-42 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hypertension secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for obstructive sleep apnea secondary to service-connected PTSD. 3. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to December 1984 and from April 1985 to September 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified during a video conference hearing before a Veterans Law Judge (VLJ) in February 2012. A transcript of the hearing is of record. The Veteran was notified in May 2016 that the VLJ who conducted the February 2012 Board hearing was currently unavailable to participate in the decision in his appeal and he had the right to request another hearing before a different VLJ. The Veteran responded in June 2016 that he did not wish to appear at another Board hearing. The Board denied the Veteran's service connection claims for hypertension and sleep apnea and remanded his increased rating claim for PTSD in a May 2014 decision. The Veteran appealed the Board's May 2014 decision denying the Veteran's service connection claims for hypertension and obstructive sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In a February 2016 Memorandum Decision, the Court vacated the part of the May 2014 Board decision that denied entitlement to service connection for obstructive sleep apnea and hypertension, and remanded the matters to the Board for action consistent with the decision . The Board remanded the Veteran's increased rating claim for PTSD in a May 2014 decision for further evidentiary development. After obtaining the Veteran's outstanding VA treatment records and providing the Veteran with VA examinations in June 2014 and July 2015 for his increased rating claim for PTSD, the AMC returned the issues to the Board further appellate consideration. The Veteran submitted additional evidence with a waiver of initial RO consideration in July 2016. The additional evidence includes a private medical opinion regarding the Veteran's service connection claims for obstructive sleep apnea and hypertension. The Board accepts the additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2015). The issue of entitlement to a disability rating in excess of 50 percent for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is in equipoise with respect to whether the Veteran's current obstructive sleep apnea is caused by his service-connected PTSD. 2. The evidence is in equipoise with respect to whether the Veteran's current diagnosis of hypertension is caused by his service-connected PTSD and obstructive sleep apnea. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in the Veteran's favor, obstructive sleep apnea is caused by the Veteran's service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 2. Resolving any reasonable doubt in the Veteran's favor, hypertension is caused by service-connected PTSD and obstructive sleep apnea. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance As will be discussed in more detail below, the Board has granted the Veteran's service connection claims for obstructive sleep apnea and hypertension. This is a full grant of the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Criteria and Analysis for Service Connection Claims Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Similarly, 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. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Obstructive Sleep Apnea In assessing whether the Veteran is entitled to service connection for obstructive sleep apnea, the evidence must show that the Veteran has a current diagnosis of the claimed disability. A July 2007 sleep study shows that the Veteran was diagnosed with severe obstructive sleep apnea. A VA examination dated in April 2010 reveals that the Veteran has a current diagnosis of sleep apnea. Accordingly, the Veteran has a current diagnosis of the claimed disability. Furthermore, the claims file shows that Veteran is in receipt of service connection for PTSD. Regarding the issue of whether the Veteran's obstructive sleep apnea is secondary to his service-connected PTSD, the record contains conflicting medical opinions. Specifically, a VA examiner in April 2010 provided the opinion that obstructive sleep apnea is less likely than not caused by and certainly not aggravated by the Veteran's PTSD. He explained that sleep apnea was known to be caused by a physiological upper airway disorder without any association to PTSD. Thereafter, the Veteran submitted several articles and a study pertaining to PTSD and sleep apnea. In response to the articles, an additional medical opinion was provided in September 2010. The examiner reviewed the claims file, to include the abstracts and articles submitted by the Veteran. The examiner was asked to review the records and indicate whether the April 2010 VA examiner's opinion remained the same or should change as a result of the articles. The examiner reviewed the evidence and stated that when the articles were reviewed in their entireties, they came from the periphery of medical articles and were not from mainstream medical documentation. When one reviews the current medical literature, and this would be from well renowned and well-grounded medical documentation sources, there were no articles that specifically state PTSD causes sleep apnea. The examiner explained that sleep apnea has specific etiologies, and PTSD was not one of them. The examiner stated that the articles supplied come from the periphery and were not from studies that have been well proven (repeatedly or scientifically, based on current standards of investigation) over the years. Many of the articles state "suggest" or "possible" contributions, or "may be related," but none of them state very specific relationships or causations. The articles suggest further review and investigation. Suggestions and possibilities are not well founded etiologies. Concerning sleep apnea, the examiner stated that these were obstructive issues and causation concerning sleep apnea was well documented in the medical literature. There have been suggestions as to difficulty sleeping and insomnia, but PTSD does not cause obstruction within the upper airway. It was noted in this Veteran's case, a review of past medical records showed very clear and numerous risk factors for the development of his medical issues. The indisputable risk factors were described in the history and physical examinations performed in the past. The examiner determined that the previous medical opinions provided by the April 2010 examiner were not changed. In contrast, a private independent medical opinion dated in July 2016 reveals that a private physician provided the opinion that after reviewing the Veteran's claims file and the pertinent recent medical literature, it is more likely than not that the Veteran's sleep apnea is secondary to his service-connected PTSD. He noted that 47.6 percent of combat veterans with PTSD were found to have obstructive sleep apnea compared to only 12.5 percent of healthy controls. The physician discussed an article that talked about a recent study conducted by scientists at the Madigan Army Medical Center noting that they observed sleep disturbances were increasing in frequency and are commonly diagnosed during deployment and when military personnel return from deployment. Recent evidence suggests the increased incidence of sleep disturbances in redeployed military personnel is potentially related to PTSD, depression, anxiety, or traumatic brain injury. The physician also noted that there is a growing body of evidence that suggests that disturbed sleep is more likely to be a core feature of PTSD and hypoxia, sympathetic discharge from respiratory disturbances, dysfunctional REM sleep, and abnormal REM mechanism have been proposed as a mechanism for sleep apnea in PTSD patients. The Board finds that this medical opinion is persuasive and probative as to the issue of whether the Veteran's obstructive sleep apnea was caused by the Veteran's PTSD, as the examiner provided a clear explanation based on a review of the Veteran's claims file and recent medical literature. After careful review of the evidence, to include the aforementioned medical opinions, the Board finds no reason to accord more weight to the negative medical opinions over the positive medical opinion. Thus, the record contains an approximate balance of positive and negative evidence regarding the issue of whether the Veteran's current obstructive sleep disorder is caused by service-connected PTSD. As such, the Board resolves any reasonable doubt in favor of the Veteran. Accordingly, entitlement to service connection for obstructive sleep apnea is warranted. Hypertension The medical evidence of record shows that the Veteran has a current diagnosis of hypertension. Specifically, VA treatment records show that the Veteran was diagnosed with and was treated for hypertension during the appeal period. In addition, a March 2010 VA examination report reflects that the Veteran has a diagnosis of hypertension. Furthermore, the claims file documents that the Veteran is service-connected for PTSD and based on the decision above, the Veteran is also now service-connected for obstructive sleep apnea. With respect to the issue of whether the Veteran's hypertension is secondary to his service-connected PTSD, the record contains conflicting medical opinions. Specifically, a VA examiner in April 2010 provided the opinion that the Veteran's hypertension is less likely than not caused by PTSD and PTSD is certainly not an aggravating factor for the Veteran's well-controlled hypertension. He determined that the Veteran's essential hypertension diagnosed for the first time when hospitalized with a myocardial infarction in June 2007 cannot be considered to be caused by PTSD. The examiner explained that there is no supporting data in the medical literature that the disease of essential hypertension is caused by or aggravated by PTSD. Thereafter, the Veteran submitted several journal articles in support of his claim and contended that these studies demonstrate a relationship between PTSD and hypertension. In response to the articles, an additional medical opinion was provided in September 2010. The examiner was asked to review all of the records and indicate whether the April 2010 VA examiner's opinion was changed by the additional evidence. The examiner reviewed the additional documentation and found that the previous medical opinions provided by the examiner in April 2010 were not changed. He explained that these documents come from the periphery of medical articles and were not from mainstream medical documentation. When one reviews the current medical literature, and this would be from well renowned and well-grounded medical documentation sources, there were no articles that specifically state PTSD specifically causes hypertension. The examiner explained that hypertension has specific etiologies and PTSD was not one of them. The examiner stated that the articles supplied come from the periphery and were not from studies that have been well proven (repeatedly or scientifically, based on current standards of investigation) over the years. Many of the articles state "suggest" or "possible" contributions, or "may be related," but none of them state very specific relationships or causations. They suggest further review and investigation. Suggestions and possibilities are not well founded etiologies. In contrast, a private independent medical opinion dated in July 2016 reveals that a private physician provided the opinion that it is more likely than not that the Veteran's hypertension is secondary to his service-connected PTSD and sleep apnea. The physician explained that the medical literature is abundantly clear that PTSD is associated with aberrations of rapid eye movement sleep resulting in the development of hypertension. He also noted and discussed several studies finding that PTSD was a risk factor for hypertension. With respect to his opinion that the Veteran's hypertension is also secondary to his sleep apnea, he noted that a press release from the Johns Hopkins School of Public Health in April 2000 reported on a study connecting high blood pressure to sleep apnea. The study appeared in the April 2000 issue of the Journal of the American Medical Association and showed that people with sleep apnea were more than twice as likely to suffer from high blood pressure. The physician also cited to a recent large multicenter study that found an excellent correlation between blood pressure and obstructive sleep apnea after analysis of findings from 20 different teaching hospitals and included 2,297 patients. The Board finds that the private physician's opinions are probative and persuasive as to the issue of whether the Veteran's hypertension is caused by service-connected PTSD and service-connected obstructive sleep apnea as the examiner provided a thorough explanation based on a review of the claims file and medical literature. After careful review of the evidence to include the aforementioned medical opinions, the Board finds no reason to accord more weight to the negative medical opinions over the positive medical opinion. Thus, the record contains an approximate balance of positive and negative evidence regarding the issue of whether the Veteran's hypertension is caused by his service-connected PTSD. Furthermore, there is only a positive probative medical opinion associated with the claims revealing that the Veteran's hypertension is also caused by his service-connected obstructive sleep apnea. Therefore, the Board resolves any reasonable doubt in favor of the Veteran. Accordingly, entitlement to service connection for hypertension is warranted. ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for hypertension is granted. REMAND With respect to the Veteran's increased rating claim for PTSD, the Board remanded the claim in May 2014 to obtain outstanding VA treatment records and to provide the Veteran with a VA examination to evaluate the current severity of his PTSD. The electronic claims file reflects that outstanding VA treatment records were associated with the claims file. Furthermore, the claims file contains VA examination reports that evaluate the Veteran's PTSD dated in June 2014 and July 2015. The issue was readjudicated in a September 2014 supplemental statement of the case. Unfortunately, additional relevant evidence was associated with the claims file after the most recent supplemental statement of the case to include VA treatment records and the July 2015 VA mental health examination, and this evidence was not considered in a further supplemental statement of the case. See 38 C.F.R. § 19.31, 1937 (2015). Thus, the increased rating claim for PTSD must be remanded for readjudication in a supplemental statement of the case in light of the new evidence associated with the claims file. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's increased rating claim for PTSD based on a review of the entire evidentiary record (with specific consideration of the evidence associated with the claims file following the issuance of the September 2014 supplemental statement of the case). If any of the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs