Citation Nr: 1716111 Decision Date: 05/12/17 Archive Date: 05/22/17 DOCKET NO. 13-12 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for spina bifida occulta. 2. Entitlement to a disability rating in excess of 20 percent for right knee chondromalacia with osteoarthritis. 3. Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected right knee disability. 4. Entitlement to service connection for a right lower extremity neurological disability, to include as secondary to the claimed lumbar spine disability. 5. Entitlement to service connection for a right hip disability, to include as secondary to the service-connected right knee disability. 6. Entitlement to service connection for a left hip disability, to include as secondary to the service-connected right knee disability. 7. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability. 8. Entitlement to service connection for a headache disorder, to include as secondary to the service-connected obstructive sleep apnea (OSA). 9. Entitlement to service connection for a sinus disability, to include as secondary to the service-connected OSA. 10. Entitlement to service connection for hypertension, to include as secondary to the service-connected OSA. 11. Entitlement to a disability rating in excess of 10 percent for depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During his November 2016 Board hearing, the Veteran stated he was not working; however, the Veteran indicated this may be the result of a prior employment termination. Nonetheless, the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) has been potentially raised, and as such, this issue is referred to the AOJ for appropriate action to determine whether it was the Veteran's intent to claim entitlement to a TDIU rating. The issues of entitlement to service connection for a left hip disability, left knee disability, headache disorder, sinus disability, and hypertension, as well as entitlement to an increased rating for depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During his November 2016 hearing, prior to the promulgation of a decision in the appeal, the Veteran informed the Board that he desired to withdraw his appeal for entitlement to service connection for spina bifida occulta, as well as entitlement to a disability rating in excess of 20 percent for right knee chondromalacia with osteoarthritis. 2. The Veteran's lumbar spine disability was caused by his service-connected right knee disability, and his right lower extremity neurological disability was caused by his lumbar spine disability. 3. The Veteran's right hip disability was caused by his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for spina bifida occulta, as well as entitlement to a disability rating in excess of 20 percent for right knee chondromalacia with osteoarthritis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. Lumbar spine degenerative disc disease, with right lower extremity radiculopathy is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2016). 3. Right hip sacroiliac joint dysfunction is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204(a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b). During his November 2016 Board hearing, the Veteran requested the issues of entitlement to service connection for spina bifida occulta, and entitlement to a disability rating in excess of 20 percent for right knee chondromalacia with osteoarthritis be withdrawn. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran's appeal, and the issues must be dismissed. Service Connection-Lumbar Spine Disability, Right Lower Extremity Neurological Disability, and Right Hip Disability At the outset, the Board notes that the essential facts of the Veteran's claims for entitlement to service connection for a lumbar spine disability, right lower extremity neurological disability, and right hip disability are essentially identical. Specifically, the Veteran has asserted that each of these disabilities were caused by his right knee disability, as a result of an alteration of his gait. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. VA's Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). Because the Board is granting the Veteran's service connection claims for a lumbar spine disability, right lower extremity neurological disability, and right hip disability, any error committed with respect to those claims is harmless. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran is claiming service connection is warranted for a lumbar spine disability, right lower extremity neurological disability, and right hip disability, because these disabilities were caused by his service-connected right knee disability. At the outset, the Board notes the report of the Veteran's April 2010 VA examination established a diagnosis of lumbar spine degenerative disc disease and strain, right lower extremity radiculopathy, and right sacroiliac dysfunction. As such, current lumbar spine, right lower extremity neurological, and right hip disabilities are shown. The Board also initially notes that several clinicians, to include the April 2010 VA examiner, have determined the Veteran's right lower extremity radiculopathy is associated with his lumbar spine disability; therefore, the Board will focus on whether the lumbar spine disability is consequentially related to the service-connected right knee disorder. A review of the Veteran's service treatment records does not indicate he was treated for these disabilities in service, and the Veteran has not alleged they originated therein. Consequently, the central issue in this case is whether his current lumbar spine, right lower extremity neurological, and right hip disabilities were caused or aggravated by his service-connected right knee disability. The Board notes that during the Veteran's April 2010 VA examination the examiner determined the Veteran's claimed disabilities were less likely as not due to his service-connected right knee disability. In this respect, the examiner found the Veteran was morbidly obese, and this was the largest contributing factor to his claimed disabilities. The examiner further stated that his altered gait pattern due to his right knee was contributing to his lumbar spine, right lower extremity neurological, and right hip disabilities; however, the major factor was the Veteran's weight problem. The examiner failed to explain how he came to this conclusion in any meaningful way. To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the above-noted examination report has been afforded only slight probative value, because the opinion provided is unsupported by a reasoned explanation. Conversely, the Veteran has provided medical opinions from two of his treating chiropractors, as well as a medical opinion from his treating physician. In a December 2008 statement, Chiropractor J.M. stated he had treated the Veteran since 2007, and indicated it was his belief the Veteran's right knee disability was as least as likely as not contributing indirectly to his current hip and spine disability, as a result of his alteration of gait. Chiropractor B.H. authored opinions in January 2010 and August 2010. In those statements he indicated he had treated the Veteran since January 2010. In each of his statements he noted the Veteran's service-related injury, and found the Veteran's current back and thigh impairments were "least likely as not directly related to his right knee condition." The Board finds the most probative statement was provided by the Veteran's treating physician at Pointe Medical Services in December 2016. In his statement, Dr. G.B. stated the Veteran's right knee injury caused an ongoing struggle with obesity. This, he found was at least as likely as not the cause of his hip and lower back impairments. There is no evidence of record contradicting this competent physician's conclusion. Indeed, during the Veteran's April 2010 VA examination, he reported he was unable to do anything physical as a result of his right knee disability, which very likely resulted in his deconditioned state. Here, the overwhelming evidence establishes the Veteran's right hip and lumbar spine disabilities were caused by a combination of gait alteration and deconditioning, which were the result of limited physical abilities caused by the Veteran's right knee disability. Further, it is also clear the Veteran's right lower extremity radiculopathy resulted from nerve impingement caused by his lumbar spine degenerative disc disease. Accordingly, the Board concludes service connection is warranted for his current lumbar spine, right lower extremity neurological, and right hip disabilities. ORDER The appeal for entitlement to service connection for spina bifida occulta is dismissed The appeal for entitlement to a disability rating in excess of 20 percent for right knee chondromalacia with osteoarthritis is dismissed. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a right lower extremity neurological disability is granted. Entitlement to service connection for a right hip disability is granted. REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's remaining claims are decided. Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Left Hip Claim With respect to the Veteran's left hip disability, the Board notes the Veteran underwent a VA examination in April 2010. At that time, the examiner indicated the Veteran denied having a left hip condition, and did not assess him for this disability. However, in the course of his November 2016 Board hearing, the Veteran again stated he was experiencing pain in his left hip, which he believed was "secondary to the right knee." Based on this discrepancy, the Board finds a new VA examination and medical opinion is warranted. Left Knee Claim Next, the Board notes that with respect the Veteran's claimed left knee disability, an April 2010 VA examination report establishes a diagnosis of left knee osteoarthritis. However, the examiner found this disability was less likely as not due to his service-connected right knee disability. Like his findings as to the Veteran's lumbar spine and right hip, the examiner again based his conclusion on the Veteran's morbid obesity, but conceded that his altered gait pattern due to his right knee was contributing to the left knee disability. As explained above, the examiner failed to explain how he came to this conclusion, and in the absence of a reasoned medical explanation for his conclusion, the Board finds this medical opinion is insufficient. See Nieves-Rodriguez, 22 Vet. App. at 295. As such, a new VA medical opinion addressing the etiology of the Veteran's left knee disability must be obtained. Headache Disorder Claim In June 2010, the Veteran underwent a VA neurological disorders examination. At that time, the examiner determined the Veteran's reported headaches were not a "primary headache disorder," but rather a symptom associated with his service-connected OSA. A nexus between the Veteran's headaches and his OSA has clearly been established in this case, as the Veteran has also provided letters from two of his primary care physicians. In an October 2008 letter, Dr. G.B. stated "early morning headaches upon arising are a classic sign of sleep apnea. This results from hypoxemia due to the sleep apnea." In an August 2010 statement, the Veteran's primary care physician at the Gainesville VAMC also determined his headaches were as least as likely as not caused by his sleep apnea. Unfortunately, the June 2010 VA examiner failed to explain how and why the Veteran's headaches should not be considered a stand-alone diagnosed disability. For example, the examiner wholly failed to explain why the Veteran's headaches did not satisfy the diagnostic criteria to be assessed as tension headaches, migraines, or some other clinically diagnosed headache disorder. Rather, the examiner merely determined the Veteran's headaches were a symptom associated with his OSA, but did not explain how she came to this conclusion. Based on this insufficiency, the Board finds a new VA examination is warranted. Sinus Disability Claim The Veteran also underwent a VA examination in June 2010 to assess his claimed sinus disability. At that time he was diagnosed with allergic rhinitis. The examiner found his rhinitis was neither caused nor aggravated by his OSA. During his November 2016 Board hearing, the Veteran indicated his sinuses get clogged up because it is hard to breath on his continuous positive airway pressure (CPAP) machine. The Veteran asserted that his frequent nasal congestion led to the development of his sinusitis. Although the June 2010 VA examiner found the Veteran does not have sinusitis, a review of his outpatient treatment records from the Gainesville VAMC confirms he has been diagnosed with and treated for sinusitis. Though the Veteran did not present with active sinusitis during his June 2010 VA examination, the evidence does indicate he has been treated for this condition during the pendency of the appeal, and as such, a medical opinion is necessary to determine if the disability was caused or aggravated by his service-connected OSA. Further, the June 2010 VA examiner also failed to explain how she determined the Veteran's allergic rhinitis was not caused or aggravated by his OSA. As such, a remand is necessary to obtain a new examination, with competent medical opinions addressing these issues. Hypertension Claim In June 2010, the Veteran underwent a VA hypertension examination. At that time, the examiner determined the Veteran's hypertension was less likely as not caused by his OSA. In support of this conclusion, the examiner indicated un-cited medical literature does not "definitively" support the conclusion that sleep apnea causes hypertension. The examiner went on to state some studies do indicate a causative association exists; however, other studies find no association. The examiner also noted that one of the risk factors for sleep apnea is obesity, and that obesity is also a risk factor for hypertension. The examiner failed to explain why she found the medical studies that do not support an association to be more persuasive than the studies finding an association. In addition, the examiner did not explain why she found obesity to be an important factor in this case; however, as noted above, in a December 2016 statement the Veteran's treating physician at Point Medical Services found the Veteran's obesity was consequentially associated with his service-connected right knee disability. Further, the Veteran has also supplied two statements from his treating physician at the Gainesville VAMC. In a January 2010 statement, Dr. G.D. indicated hypertension is "commonly associated with sleep apnea." Thereafter, in an August 2010 statement, she found the Veteran's hypertension is "as least as likely as not" caused by sleep apnea. Unfortunately, the Veteran's treating physician also failed to provide any rationale explaining this conclusion. Based on these insufficiencies, the Board finds a new VA medical opinion is warranted. Increased Rating for Depression In a December 2016 statement, the Veteran's representative raised the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). At that time the Veteran submitted a disability benefit questionnaire that was completed by his treating psychiatric physician at the Gainesville VAMC. In addition, during his recent November 2016 Board hearing, the Veteran asserted a worsening of his service-connected depressive disorder. The Board observes the Veteran was most recently afforded a VA examination to determine the current degree of severity of his depressive disorder in June 2010. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). For these reasons, the Board finds a new VA psychiatric examination is necessary. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issues on appeal, to specifically include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected depressive disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct any required testing or concludes any required testing is not necessary, he or she should clearly explain why that is so. 3. Additionally, the Veteran must be afforded an appropriate VA examination for his claimed sinus disability. The evidence of record, in the form of electronic records, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All necessary tests must be conducted, including any specialty examination warranted. The examiner must review the results of any testing prior to completion of the report. Relative to the Veteran's claimed sinus disability, based on a review of the Veteran's pertinent history and the examination results, the examiner should state an opinion with respect to whether there is a 50 percent or better probability that any sinus disability diagnosed in the course of the appeal period, to specifically include sinusitis and allergic rhinitis: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his obstructive sleep apnea disability; or c) was permanently worsened by his obstructive sleep apnea disability. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran's competent lay statements, and assume such statements are credible for purposes of the opinions. Specifically, the examiner should discuss the Veteran's reports of increased nasal congestion caused by his CPAP machine. 4. The Veteran must also be afforded an appropriate VA examination for his claimed headache disability. The evidence of record, in the form of electronic records, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All necessary tests must be conducted, including any specialty examination warranted. The examiner must review the results of any testing prior to completion of the report. Relative to the Veteran's claimed headache disability, based on a review of the Veteran's pertinent history and the examination results, the examiner should state whether the Veteran's reported headaches warrant a stand-alone diagnosable headache disorder, or alternatively, whether the Veteran's headaches should be considered a symptom associated with his obstructive sleep apnea. In this respect, if the examiner determines a stand-alone headache disorder has not been present during the period of the claim, he or she should explain why a diagnosable headache disorder is not warranted. 5. In addition, the Veteran must be afforded an appropriate VA examination for his claimed left hip disability. The evidence of record, in the form of electronic records, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All necessary tests must be conducted, including any specialty examination warranted. The examiner must review the results of any testing prior to completion of the report. Relative to the Veteran's claimed left hip disability, based on a review of the Veteran's pertinent history and the examination results, the examiner should state an opinion with respect to whether there is a 50 percent or better probability that any left hip disability: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected right knee disability; or c) was permanently worsened by his service-connected right knee disability. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran's competent lay statements, and assume such statements are credible for purposes of the opinions. Specifically, the examiner should discuss the Veteran's reports of a gait imbalance caused by his right knee disability, as well as the December 2016 statement from the Veteran's treating physician indicating the Veteran's obesity was proximately caused by his service-connected right knee disorder. 6. The RO should also obtain a medical opinion from an examiner with sufficient experience and expertise to opine on the etiology of the Veteran's claimed hypertension and left knee disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Another examination of the Veteran should be performed only if deemed necessary by the physician providing the opinions. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hypertension: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected obstructive sleep apnea; c) was permanently worsened by his service-connected obstructive sleep apnea. The examiner should also state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee osteoarthritis: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected right knee disability; c) was permanently worsened by his service-connected right knee disability. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran's competent lay statements, and assume such statements are credible for purposes of the opinions. Specifically, with respect to the Veteran's left knee disability, the examiner should discuss the Veteran's reports of a gait imbalance caused by his right knee disability, as well as the December 2016 statement from the Veteran's treating physician indicating the Veteran's obesity was proximately caused by his service-connected right knee disorder. In relation to the Veteran's claimed hypertension, the examiner should discuss the January and August 2010 statements from the Veteran's treating physician at the Gainsville VAMC. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 7. The RO should then undertake any additional development deemed necessary. 8. Finally, the RO should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs