Citation Nr: 1648053 Decision Date: 12/27/16 Archive Date: 01/06/17 DOCKET NO. 14-26 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea, to include as due to a qualifying chronic disability or as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for hypertension, to include as due to a qualifying chronic disability or as secondary to service-connected PTSD. 4. Entitlement to service connection for diverticulitis, to include as secondary to service-connected irritable bowel syndrome (IBS). 5. Entitlement to an initial compensable rating for service-connected hypersensitive pneumonitis. 6. Entitlement to an initial rating in excess of 70 percent for service-connected PTSD and major depressive disorder including anxiety, irritability, night terrors, depression, and sleep impairment. 7. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to July 1992. This case comes before the Board of Veterans' Appeals (Board) from March 2013, May 2014, and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In November 2015, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In February 2014 the Veteran gave testimony at a hearing at the RO before a local hearing officer. Transcripts of the hearings are of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains additional VA treatment records and documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issues on appeal. The claims of entitlement to service connection for sleep apnea and diverticulitis, claims of entitlement to an initial compensable rating for hypersensitive pneumonitis and an initial rating in excess of 70 percent for PTSD, and the claim of entitlement to a 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. A June 2011 decision denied the Veteran's application to reopen the claim of entitlement to service connection for sleep apnea. The Veteran did not appeal or submit new and material evidence within one year. 2. Evidence received subsequent to the June 2011 RO decision does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for sleep apnea. 3. Resolving doubt in favor of the Veteran, the Veteran's headaches are caused by service-connected PTSD. 4. Resolving doubt in favor of the Veteran, the Veteran's hypertension is caused by service-connected PTSD. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied the Veteran's application to reopen the claim of entitlement to service connection for sleep apnea is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of service connection for sleep apnea. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for secondary service connection for headaches are met. 38 U.S.C.A. §§ 1110, 1130, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 4. The criteria for secondary service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 1130, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). Because the Board is reopening the Veteran's claim for service connection for sleep apnea, granting service connection for headaches and hypertension, and remanding the remaining issues, no analysis of these duties is required prior to adjudication of the claims herein. Claim to Reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2015). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2015). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, 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 but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). In a February 2010 rating decision, the RO denied service connection for sleep apnea as there was no diagnosis of sleep apnea. The Veteran did not appeal the rating decision nor submit new and material evidence within one year. The February 2010 rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Just over one year later, the Veteran filed a claim to reopen. In a June 2011 decision, the RO denied the Veteran's application to reopen the sleep apnea claim. The Veteran did not appeal the decision nor submit new and material evidence within one year. The June 2011 rating decision is thus final based on the evidence then of record. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the June 2011 rating decision included STRs that contained no findings or complaints related to sleep apnea. No other treatment records were available. Evidence of record submitted after the June 2011 decision, includes an August 2012 sleep study diagnosing severe obstructive sleep apnea. A December 2014 VA examination was conducted. The examiner opined that sleep apnea was not caused by service-connected PTSD. At the November 2015 Board hearing the Veteran indicated that he had never been able to sleep and would snore all the time. He was initially told that he snored by his first wife around 1990 when he was in the service. In a statement received in January 2016 the Veteran's ex-wife indicated that she had been married to the Veteran from 1990 to May 2010. She stated that the Veteran suffered from sleep related issues that arose after his return from the Persian Gulf Region in 1991, and that the sleep issues had persisted for the duration of the marriage. The Board finds, as did the RO, that new and material evidence has been presented. The evidence, including the Veteran's ex-wife's statement and the diagnosis of sleep apnea, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - the existence of a current disability and of potential in-service onset. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's sleep apnea claim is reopened. Claims for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). To establish a right to compensation for a present 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2015); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, 7 Vet. App. 439. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014). The Veteran asserts that his hypertension began immediately after service and that his headaches began during service. The Veteran's STRs contain no complaints or diagnoses related to elevated blood pressure or headaches. The Veteran's May 1992 service separation examination report indicates that the Veteran's neurologic system and heart were clinically evaluated as normal, with blood pressure recorded as 118/84. The Veteran specifically denied that he had frequent headaches or high blood pressure on May 1992 and December 1992 Reports of Medical History. A January 2012 private medical record noted a history of hypertension and noted that the Veteran was taking Lisinopril. A July 2012 private medical record noted that the Veteran complained of headaches and had a history of hypertension. Ina September 2012 VA Gul War General Medical examination report, headaches and hypertension were not noted as symptoms. The Veteran's history was negative for headaches on a September 2012 VA chronic fatigue syndrome examination. A May 2013 VA medical record noted that the Veteran began complained of headaches after sustaining a head injury in the bed of his pickup truck. Records such as a May 2013 VA medical record noted that the Veteran's hypertension had resolved with weight loss. A December 2014 VA examination and opinion were obtained upon a review of the claims file. The examiner opined that it was less likely than not that the Veteran's PTSD caused his hypertension because he had risk factors, even though stress and anxiety can play into elevated blood pressure levels. The examiner also noted numerous other medical comorbidities. Headaches were noted on an August 2015 VA chronic fatigue syndrome VA examination. At the November 2015 Board hearing the Veteran indicated that a doctor he had seen following service was the first to mention that he had borderline hypertension and had put the Veteran on hypertension medication. His current physician also had him on hypertension medication. Also at the November 2015 Board hearing the Veteran indicated that his headaches had begun during service and that he had seen a physician after service for about 10 years, but indicated that the treatment records were no longer available. He was currently taking pills on the onset of his migraines and he sometimes had to miss work or be sent home from work due to his headaches. In a January 2016 VA record, the Veteran's psychiatrist stated that anxiety can easily raise blood pressure causing hypertension and anxiety also can increase headache frequency and severity. The Veteran's psychiatrist indicated that on review of journal articles, the Veteran's hypertension and migraine headaches are, in this provider's opinion, more likely than not caused by or at the very least exacerbated by his PTSD. The Board finds that service connection for hypertension and headaches are warranted. First, there are current disabilities of both, as VA treatment records indicate. 38 C.F.R. § 3.303(a); Holton, 557 F.3d at 1366. Second, the Veteran is service-connected for PTSD. 38 C.F.R. § 3.310. Third, resolving all doubt in favor of the Veteran, the evidence shows that PTSD caused both hypertension and headaches. The Veteran's VA psychiatrist has indicated that the hypertension and headaches were caused by service-connected PTSD. Although a 2014 VA examiner provided a negative nexus opinion regarding hypertension, the Board cannot find a way to distinguish between the probative value of the two opinions. Furthermore, there is no such negative nexus opinion regarding headaches. Accordingly, service connection for headaches and hypertension, secondary to service-connected PTSD, is granted. ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea, the appeal, to this extent, is granted. Service connection for hypertension is granted. Service connection for headaches is granted. REMAND Regarding the claim for entitlement to service connection for sleep apnea, remand is required to obtain an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Here, a December 2014 VA opinion was provided. The examiner opined that sleep apnea was not caused or aggravated by the Veteran's PTSD. The examiner did not, however, address direct service connection and consider the Veteran and his ex-wife's statements, or address whether it was caused or aggravated by service-connected pneumonitis. Accordingly, another opinion must be obtained. Regarding the claim for entitlement to service connection for diverticulitis, remand is required to obtain a VA examination and opinion. An examination is necessary in a service connection claim where the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology). The Veteran has a diagnosis of diverticulitis, as indicated by private medical records. Additionally, the Veteran is service-connected for irritable bowel syndrome (IBS). It is the Veteran's primary assertion that his diverticulitis is secondary to his service-connected IBS. Accordingly, an examination and opinion are required. Regarding the issue of entitlement to an initial compensable rating for service-connected hypersensitive pneumonitis, remand is required for a current examination. When a claimant asserts, or the record shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran underwent a VA respiratory examination in April 2013 that consisted basically of only pulmonary function testing. There is no indication that the Veteran described any breathing problems, and there was little noted concerning any medications the Veteran might have been taking. At the November 2015 Board hearing, however, the Veteran stated that he had a hard time breathing and that he was on an inhaler and an "immunizer" for symptom relief. He stated that it had been suggested to him that he needed a lung capacity check. As it appears that the Veteran is claiming his breathing problems have worsened since his April 2013 VA examination, the Veteran should be afforded another VA examination. Regarding the issue of entitlement to an initial rating in excess of 70 percent for service-connected PTSD, remand is required for a current examination. When a claimant asserts, or the record shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95; Snuffer, 10 Vet. App. 400. At the Veteran's last PTSD examination in February 2014, there were no findings or complaints concerning hallucinations or related symptoms. At the November 2015 Board hearing, however, the Veteran indicated that he had been having nightmares, hallucinations, and "everything from A to Z." and indicated that he needed "to be evaluated." He also stated that he was going through a divorce as his wife could not handle his PTSD. The Veteran also indicated that he had 14 surveillance cameras due to the fact that he was seeing things that would be "there" and "not there." A July 2015 VA mental health note indicated that the Veteran was hearing "things" walking across his deck (when no one was there) and was hearing different voices inside his head. The evidence thus suggests that the Veteran's PTSD symptoms have worsened since his February 2014 VA examination, and the Veteran should be afforded another VA examination to assess the current severity of his PTSD. As for the issue of entitlement to a TDIU, as the AOJ's implementation of the Board's decision and the outcome of the remanded issues may impact the decision on the issue of entitlement to a TDIU, remand of the TDIU issue is necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after January 12, 2016. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with a VA sleep apnea examination. The claims file must be made available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. A full explanation must be provided for each opinion. The examiner must provide the following opinions: 1) Is it at least as likely as not (50 percent or greater probability) that the sleep apnea had its onset in service or is etiologically related to his active service; 2) Is it at least as likely as not (50 percent or greater probability) that the sleep apnea is caused by the service-connected hypersensitive pneumonitis or PTSD disability; and 3) Is it at least as likely as not (50 percent or greater probability) that the sleep apnea is aggravated by the service-connected hypersensitive pneumonitis or PTSD disability. The examiner must consider the Veteran's ex-wife's January 2016 statement, the Veteran's lay statements, and the prior etiological opinions of record. 4. After any additional records are associated with the claims file, provide the Veteran with a VA intestinal examination. The claims file must be made available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. A full explanation must be provided for each opinion. The examiner must provide the following opinions: 1) Is it at least as likely as not (50 percent or greater probability) that the diverticulitis had its onset in service or is etiologically related to his active service; 2) Is it at least as likely as not (50 percent or greater probability) that the diverticulitis is caused by service-connected IBS; and 3) Is it at least as likely as not (50 percent or greater probability) that the diverticulitis was aggravated (made worse) by service-connected IBS. If the examiner determines that diverticulitis was aggravated by service-connected disability, the examiner should report the baseline level of severity of the diverticulitis prior to the onset of aggravation. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected hypersensitive pneumonitis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected PTSD. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must utilize the appropriate DBQ. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs