Citation Nr: 1646800	
Decision Date: 12/14/16    Archive Date: 12/21/16

DOCKET NO.  16-11 943	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depressive disorder.

2. Entitlement to service connection for post-traumatic stress disorder (PTSD).

3. Reconsideration of the claim for entitlement to service connection for sleep apnea.

4. Reconsideration of the claim for entitlement to service connection for a thyroid condition.

5. Reconsideration of the claim for entitlement to service connection for sinusitis, including chronic cough.

6. Reconsideration of the claim for entitlement to service connection for a foot condition related to a cold injury.

7. Entitlement to an increased rating for the residuals of traumatic brain injury (TBI), currently rated as 40 percent disabling.

8. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU).

9. Entitlement to service connection for sleep apnea.

10. Entitlement to service connection for a thyroid condition.

11. Entitlement to service connection for sinusitis, including chronic cough.

12. Entitlement to service connection for a foot condition related to a cold injury.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran had active duty for training September 1977 until August 1985. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 and July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

During the pendency of the appeal the issue of service connection for hemorrhoids was granted, effective April 26, 2012. As such, the issue is no longer before the Board for adjudication.

The issues of entitlement to service connection for a thyroid condition, entitlement to service connection for sinusitis, entitlement to an increase rating for TBI, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The competent medical evidence reflects the Veteran has anxiety and depressive disorder due to active service.

2. The medical evidence reflects that the Veteran does not have a diagnosis of PTSD.

3. In an October 2010 rating decision, the RO denied service connection for a sleep disturbance, thyroid condition, sinusitis, and a foot condition due to a cold injury.

4. The evidence received since the October 2010 decision denying service connection for a sleep disturbance, thyroid condition, sinusitis, and a foot condition due to a cold injury includes relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.

5. The competent medical evidence reflects that the Veteran's sleep apnea is related to his service-connected residuals of TBI.

6. The Veteran does not have a foot condition due to a cold injury.



CONCLUSIONS OF LAW

1. The criteria for service connection for anxiety and depressive disorder have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304 (2015).

2. The criteria for service connection for PTSD disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304 (2015).

3. The October 2010 decision denying service connection for sleep disturbance is for reconsideration. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2015).

4. The October 2010 decision denying service connection for a thyroid is for reconsideration. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2015).

5. The October 2010 decision denying service connection for sinusitis, claimed as a chronic cough, is for reconsideration. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2015).

6. The October 2010 decision denying service connection for a foot condition due to a cold injury is for reconsideration. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2015).

7. The criteria for service connection of sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

8. The criteria for service connection for foot condition due to a cold injury have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, the application for reconsideration  of the claim for service connection for sleep apnea, entitlement to service connection for sleep apnea, the application for reconsideration of the claim for service connection for a thyroid condition, the application for reconsideration of the claim for service connection for sinusitis, and the application for reconsideration of the claim for service connection for a foot condition due to a cold injury; which represents a complete grant of these benefits sought on appeal. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159.

Acquired psychiatric disorder, to include anxiety and depressive disorder

Legal criteria

Service Connection in General

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).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81  (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.

In an October 2010 rating decision, the RO denied the Veteran's claim for service connection for depression, concluding that the Veteran's claimed condition was not related to his military service. In April 2011 the Veteran submitted a statement contending that his current mental disabilities are related to an in-service injury. A VA examination was provided in August 2011, confirming a diagnosis of anxiety disorder and depressive disorder for the Veteran. In a July 2013 decision, the RO denied the Veteran's claim to reopen the claim for service connection for depression. 

The United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, giving the Veteran the benefit of the doubt, the Board finds that the Veteran's April 2011 statement in regard to his mental disability must be construed as a notice of disagreement; effectively preserving his appeal as it was received within one year from the October 2010 denial. Therefore, the issue has been recharacterized as shown on the title page and encompasses all reasonably related acquired psychiatric disorders, to include anxiety and depressive disorder.

The Veteran avers that he currently has a psychiatric disorder related to his military service. An essential element of a claim for service connection for a mental condition is medical evidence diagnosing the disorder. A diagnosis of a mental disorder must be established in accordance with 38 C.F.R. § 4.125 (a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fifth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). See 38 C.F.R. § 3.304 (f). The claims file reflects that the Veteran has been diagnosed with (in conformity with the criterion set forth in the DSM-5) and treated for anxiety and depressive disorder. (See November 2014 private medical report, July 2013 VA medical examination, and August 2011 VA medical examination).

A second element of a claim for service connection for an acquired psychiatric disorder is credible supporting evidence that the claimed in-service stressor actually occurred. The Veteran avers that during his military service he suffered a brain injury. VA has conceded this injury, and the Veteran is current service connected for the residuals of TBI.

A third element of a claim for service connection for an acquired psychiatric condition requires medical evidence of a link between current symptomatology and the claimed in-service stressor. In an August 2011 VA medical examination report, the clinician opined that the Veteran's anxiety and depressive disorder are as likely as not related to his in-service head trauma.  Additionally, in a November 2014 private medical assessment, the examiner concluded that the Veteran's service-connected TBI more likely than not aggravates his major depressive disorder.

In light of the Veteran's in-service incurrence, the objective clinical medical evidence as a whole, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for an acquired psychiatric disorder, to include anxiety disorder and depressive disorder, and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claim for service connection for anxiety and depressive disorder is granted.


PTSD

With respect to the Veteran's service connection claim for PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In April 2011 the Veteran submitted a claim for service connection for PTSD. In a September 2011 decision, the RO denied the Veteran's service connection claim for PTSD based on the Veteran not having a confirmed diagnosis of such disorder. In an April 2012 correspondence the Veteran requested to have his claim for PTSD re-opened. In a July 2013 decision, the RO denied the Veteran's claim for service connection for PTSD.

As explained above, an essential element of a claim for service connection for a mental condition is medical evidence diagnosing the disorder. A diagnosis of a mental disorder must be established in accordance with 38 C.F.R. § 4.125 (a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fifth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). See 38 C.F.R. § 3.304 (f). The claims file reflects that during the pendency of this claim the Veteran has not been diagnosed with PTSD. (See November 2014 private medical report, July 2013 VA medical examination, and August 2011 VA medical examination).

While the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative, Congress has specifically limited entitlement to service-connection to cases where such in-service disease or injury has resulted in disability. See 38 U.S.C.A. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Here, the medical evidence reflects that while the Veteran does have an acquired psychiatric disorder, namely anxiety and depressive disorder; the Veteran has not been found to have PTSD. (See August 2011 VA medical examination). 

Accordingly, the Board finds that a preponderance of the evidence is against each of the elements necessary for service connection and the Board concludes that service connection for PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Sleep apnea

Legal Criteria

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).

At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met. 38 C.F.R. § 3.156 (c)(i) (2015).

Analysis

In an October 2010 rating decision, the RO denied service connection for a sleep disorder. 

The records before VA at the time of the prior denial included the Veteran's lay statements and VA records. The RO acknowledged the Veteran's service treatment records prior to August 1982 were unavailable at the time of the October 2010 rating decision. The service treatment records were later associated with the claims file. As relevant official service department records that previously existed have now been associated with the claims file, the Board finds that the claim is for reconsideration under 38 C.F.R. § 3.156 (c)(i) (2015).

In March 2016 the RO reconsidered the Veteran's sleep disorder claim, and continued its denial on the merits. The Board will now review the matter de novo.

The claims folder reveals that the Veteran has been diagnosed with obstructive sleep apnea. (See March 2016 VA medical examination.). Importantly, in a July 2016 private medical report, the physician concluded that the Veteran's depression and TBI residuals are more likely than not causing and permanently aggravating his sleep apnea. In acknowledging the Veteran's treatments and complaints of sleep disturbances; the physician explained that individuals with depression are five times more likely to develop obstructive sleep apnea than non-depressed individuals. The physician further explained that patients suffering from TBI possess much higher rates of developing sleep disturbances such as sleep apnea compared to the general population.

In light of the Veteran the objective clinical medical evidence and the credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for sleep apnea, to include secondary to service-connected acquired psychiatric disorder and TBI residuals, and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claim for service connection for sleep apnea is granted.

Reconsideration of the claims of entitlement to service connection for a thyroid condition, sinusitis, and a foot condition due to a cold injury.

Legal Criteria

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).

At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met. 38 C.F.R. § 3.156 (c)(i) (2015).

Analysis

In an October 2010 rating decision, the RO denied service connection for a thyroid condition, sinusitis, and foot condition due to a cold injury.

The records before VA at the time of the prior denial included the Veteran's lay statements and VA records. The RO acknowledged the Veteran's service treatment records prior to August 1982 were unavailable at the time of the October 2010 rating decision. The service treatment records were later associated with the claims file. As relevant official service department records that previously existed have now been associated with the claims file, the Board finds that the claims are for reconsideration under 38 C.F.R. § 3.156 (c)(i) (2015).

Foot condition due to a cold injury

With respect to the Veteran's service connection claim for a foot condition due to a cold injury, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

As the claim for entitlement to service connection for a foot condition due to a cold injury is now being reconsidered, the Board will now review the matter de novo.

The Veteran contends that he experiences sensitivity to cold in his feet. (See April 2010 Veteran's Application for Compensation or Pension).  

While the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative, Congress has specifically limited entitlement to service-connection to cases where such in-service disease or injury has resulted in disability. See 38 U.S.C.A. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Here, the claims folder reflects that the Veteran does not have a diagnosis of any cold injury affecting his feet or any residuals of such injury. (See March 2016 VA medical examination). 

Accordingly, the Board finds that a preponderance of the evidence is against each of the elements necessary for service connection and the Board concludes that service connection for the claimed foot condition due to a cold injury is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for anxiety disorder and depressive disorder is granted.

Entitlement to service connection for PTSD is denied.

The application for reconsideration of the claim for service connection for a thyroid condition is granted.

The application for reconsideration of the claim for service connection for sinusitis, claimed as chronic cough, is granted.

The application for reconsideration of the claim for service connection for a foot condition due to a cold injury is granted.

The application for reconsideration of the claim for service connection for sleep apnea is granted.

Entitlement to service connection for sleep apnea is granted.

Entitlement to service connection for a foot condition due to a cold injury is denied.



REMAND

Service Connection Claims

Although the service connection claims for sinusitis and a thyroid condition are being reconsidered, the Board finds that additional development of them is necessary before actually rendering a decision on their underlying merits. As already alluded to, the Veteran maintains his conditions are related to his military service. As it stands, the claims file does not contain a VA medical opinion regarding whether the Veteran's alleged conditions initially manifested during his service or are otherwise related or attributable to his service. So the Board is requesting this necessary medical opinion. 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

TBI

The Veteran is currently service connected for the residuals of TBI, currently rated as 40 percent disabling. In this decision, the Board has granted service connection for the Veteran's acquired psychiatric disorders of anxiety and depressive disorder, as well as for his sleep apnea. The medical evidence reflects that both of the conditions are related to the Veteran's TBI residuals. When rating residuals of TBI; cognitive impairment, emotional/behavioral dysfunction, and physical dysfunction must be assessed. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The rating criteria contemplate that some of the symptoms associated with the residuals of TBI may overlap. However, when manifestations are clearly separable, a separate evaluation should be assigned. Id. Here, the evidence reflects that the Veteran has an acquired psychiatric disorder, to include anxiety and depressive disorder, which have been associated with his TBI residuals. The Board finds that an examination assessing the Veteran's TBI residual, to include his acquired psychiatric disorder and sleep apnea, is necessary in order to accurately reflect the Veteran's overall disability severity.


TDIU

The Board has considered the question of whether the Veteran would be prejudiced by considering the appeal for TDIU while remanding the above issues. Specifically, the Board questions whether the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 

As the outcome of the claims being remanded could have a significant impact on the Veteran's appeal for entitlement to TDIU, the Board finds these matters inextricably intertwined. The Board also notes that an undecided issue "inextricably intertwined" with an issue certified for appeal must be adjudicated prior to appellate review. Thus, the issue for entitlement to TDIU must be remanded.

Accordingly, the case is REMANDED for the following action:

1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for any of his service-connected disabilities, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file.

2. Schedule a VA medical examination regarding the claims of entitlement to service connection for a thyroid condition and sinusitis. The claims file, including a complete copy of this decision and remand, must be made available for the examiner to review and the examination report should reflect that this review took place.

The examiner is requested to provide the following opinions:

a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a thyroid condition caused or aggravated by his military service and

b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has sinusitis, to include a chronic cough, caused or aggravated by his military service.

3. Schedule the Veteran for an examination to determine the current nature, extent, and severity of his TBI disability, to include the current severity of any and all such (1) cognitive; (2) behavioral/emotional (psychiatric); or (3) physical manifestations. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. 

All pertinent symptomatology and findings should be reported in detail utilizing the Compensation and Pension Examination TBI Examination Guidelines. 

The examiner is asked to specifically address the degree to which the service-connected TBI disability is currently manifested by facets of cognitive impairment to memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness.

Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resorting to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made.

4. After the necessary development have been completed, to include the above instructions; obtain a VA medical evaluation in regard to the claim for TDIU. All pertinent findings should be reported. The examiner is requested to address any impairments and impact that the Veteran's service-connected disabilities have in regard to obtaining or maintaining employment. In offering this impression, the examiner must acknowledge and take into account this Veteran's education, training, and work history. All finding and conclusions should be set forth in a legible report, accompanied by a rationale.

5. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any of the benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran, and his representative, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration.

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).

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).



______________________________________________
M. H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs