Citation Nr: 1750177 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 16-11 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for chronic kidney disease. 3. Entitlement to service connection for diabetes mellitus, type 2. 4. Entitlement to service connection for hepatitis C. 5. Entitlement to service connection for arthritis. 6. Entitlement to service connection for an acquired psychiatric disability, to include alcohol and cocaine abuse, generalized anxiety disorder, or depressive disorder. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for obstructive sleep apnea (OSA). 9. Entitlement to service connection for headaches. 10. Entitlement to a rating in excess of 10 percent for service-connected degenerative disc and joint disease of the lumbar spine (low back disability). 11. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease (DDD) of the neck (neck disability). REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1977 to September 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2014 and August 2014 rating decisions of a Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has simultaneously claimed service connection for alcohol and cocaine abuse as well as depression. A review of the record also shows documented treatment for anxiety. Thus, the Board has recharacterized the matter on appeal to afford the Veteran the broadest possible scope of review. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of service connection for diabetes mellitus, type 2, hepatitis C, arthritis, and tinnitus and increased ratings for low back and neck disabilities are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence clearly shows the Veteran has been diagnosed with hypertension, and a private June 2017 opinion (the only pertinent medical opinion in the record) indicates, citing to supporting evidence and medical literature, that the Veteran's chronic pain from service-connected disabilities at least as likely as not contributes substantially and materially to his hypertension. 2. The evidence clearly shows the Veteran has been diagnosed with chronic, end-stage kidney disease and a private June 2017 opinion (the only pertinent medical opinion in the record) indicates, citing to supporting evidence and medical literature, that his hypertension at least as likely as not contributes substantially and materially to his chronic kidney disease. 3. The evidence clearly shows the Veteran has been diagnosed with, among other things, depressive disorder; a private November 2015 opinion (the only pertinent medical opinion in the record) indicates, citing to supporting evidence and medical literature, that the Veteran's depressive disorder likely began in service and continued uninterrupted, and was also likely aggravated by his service-connected low back, neck, and left arm disabilities. 4. The Veteran's records document a history of OSA but, even conceding a clinical diagnosis of such disability, the Veteran has not advanced any specific allegations regarding it; there is no evidence of complaints, treatment, or diagnoses related to OSA in service or any indication or allegation that such disability is caused or aggravated by another service-connected disability. 5. The evidence clearly shows the Veteran has been diagnosed with tension headaches and a private June 2017 opinion (the only pertinent medical opinion in the record) indicates, citing to supporting evidence and medical literature, that the Veteran's headaches are at least as likely as not precipitated and aggravated by his hypertension. CONCLUSIONS OF LAW 1. Service connection for hypertension is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). 2. Service connection for chronic kidney disease is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). 3. Service connection for an acquired psychiatric disability is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). 4. Service connection for OSA is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). 5. Service connection for headaches is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this decision grants or remands all claims except for service connection for OSA, there is no reason to belabor the impact of the VCAA on those matters; any notice or duty to assist omission is harmless. Regarding service connection for OSA, VA's duty to notify was satisfied by notice provided in conjunction with an August 2013 fully developed claim (FDC), as well as in the January 2016 statement of the case (SOC). See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has had ample opportunity to respond and has not alleged that notice was less than adequate. In addition, the Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. While the Board acknowledges that the Veteran has not been afforded an examination in conjunction with the instant claim, for reasons discussed below, the Board finds the record contains no evidence or allegation suggesting any theory of entitlement for service connection, and a threshold element of direct service connection is not met. Therefore, VA is under no duty to provide such examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the instant claim. Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's STRs are silent for complaints, treatment, or diagnoses related to a sleep disorder, OSA, or pertinent respiratory complaints (e.g., snoring, difficulty breathing during sleep, etc.). A review of the evidence shows that VA treatment records clearly note a history of OSA and include notations of OSA without the use of a continuous positive airway pressure (CPAP) machine. Crucially, however, the Veteran has not advanced any theory of entitlement for his OSA. Consequently, even conceding that the Veteran has a current, clinical diagnosis of OSA, there is no basis for awarding service connection either as related to service-as there is no evidence or allegation of an event or injury in service to which such disability could be related-or as secondary to another service-connected disability-as there is no allegation or evidence suggesting such a relationship even exists. Therefore, there is simply no basis upon which either direct or secondary service connection may be awarded. Accordingly, the Board finds the preponderance of the evidence is against the Veteran's claim seeking service connection for OSA, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. ORDER Service connection for hypertension is granted. Service connection for chronic kidney disease is granted. Service connection for an acquired psychiatric disability is granted. Service connection for headaches is granted. Service connection for OSA is denied. REMAND Unfortunately, additional development is needed before the remaining matters may be adjudicated. Service Connection: Diabetes Mellitus and Hepatitis C A review of the evidence shows the Veteran has been clinically diagnosed with both diabetes mellitus and hepatitis C (with serological confirmation). Moreover, the Board notes that both diabetes and hepatitis are commonly associated with renal dysfunction and hypertension, both of which are now service-connected. However, there has been no examination scheduled to assess whether the Veteran's diabetes and hepatitis are related to either his chronic kidney disease or his hypertension. Under the circumstances, the low threshold for triggering VA's duty to obtain such an examination is met. Service Connection: Arthritis Similarly, the Board notes the Veteran has not specified a particular location for his alleged arthritis (other than his already service-connected low back and neck disabilities) and has not been afforded an examination for this claim. However, a review of the evidence shows he has been diagnosed with right shoulder arthritis for which service connection has not yet been established. Considering this and the fact that the Veteran is service-connected for back and neck disabilities, the latter of which, in particular, is close in proximity and often conflated with shoulder complaints, the Board finds that further medical clarification is needed to determine whether the Veteran's right shoulder arthritis is caused or aggravated by his neck disability. Moreover, it remains unclear whether the Veteran is alleging that he has a systemic arthritis as well. In light of the above, the Board finds the low threshold for determining when VA must provide an examination is also met in this matter. Service Connection: Tinnitus The Veteran alleges he has tinnitus and is competent to self-diagnose such disability, as it is primarily diagnosed based on subjective reports. However, he does not allege that his tinnitus began in service or that it has been continuous since service. Rather, he suggests that it is related to excess noise exposure in service as a result of his duties as a telecommunications center operator. This is a medical question that requires further clarification, but he has not yet been afforded an audiological examination. Thus, an examination is needed. Increased Rating: Low Back The Veteran's most recent thoracolumbar spine examination was conducted in November 2013, nearly four years ago. In light of this and the fact that degenerative disc and joint disease, by its very nature, involves progressive deterioration, the Board finds that a current examination is needed to determine the current severity of such disability before a proper adjudication in this matter may be conducted. Increased Rating: Neck The Veteran's September 2014 notice of disagreement (NOD) also appealed a denial of increased rating for neck disability. However, for some reason the January 2016 statement of the case (SOC) did not include this issue. There is no evidence that the matter had been withdrawn from the appeal. Therefore, corrective action is needed. Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all updated records of VA or adequately identified private evaluations or treatment the Veteran has received for the disabilities remaining on appeal. 2. Then, arrange for the Veteran to be examined by an endocrinologist or other appropriate physician to determine the nature and likely etiology of his diabetes mellitus. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's diabetes mellitus is either: a. CAUSED BY OR PROXIMATELY DUE TO his hypertension, chronic kidney disease, or hepatitis C; or b. AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY his hypertension, chronic kidney disease, or hepatitis C. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, arrange for the Veteran to be examined by a nephrologist or other appropriate physician to determine the nature and likely etiology of his hepatitis C. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's hepatitis C is either: a. CAUSED BY OR PROXIMATELY DUE TO his hypertension, chronic kidney disease, or diabetes mellitus; or b. AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY his hypertension, chronic kidney disease, or diabetes mellitus. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Then, arrange for the Veteran to be examined by an orthopedist or other appropriate physician to determine the nature and likely etiology of his alleged arthritis. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: a. Please identify, by diagnosis, each arthritic disability entity diagnosed (other than his service-connected cervical DDD and lumbar DDD or DJD). The examiner should note that, to start, July 2013 X-rays have confirmed the presence of right shoulder acromioclavicular and glenohumeral osteoarthritis. He or she should also indicate whether the Veteran has any form of systemic arthritis. b. For each disability entity so identified (including right shoulder osteoarthritis), the examiner should opine whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is either: i. CAUSED BY OR PROXIMATELY DUE TO his service-connected low back or neck disabilities; or ii. AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY his service-connected low back or neck disabilities. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. Then, arrange for the Veteran to be examined by an audiologist to determine the likely etiology of his alleged tinnitus. Based on an examination, the Veteran's statements and subjective history, review of the record, and any tests or studies deemed necessary, the examiner should opine whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's tinnitus is related to his military service, to include as a result of excessive noise exposure while working as a telecommunications center operator. The examiner should note that the Veteran is competent to describe the onset and course of his tinnitus. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 6. Then, arrange for the Veteran to be examined by an orthopedic spine surgeon to determine the current severity of his low back disability. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pertinent findings and features of the Veteran's low back disability in sufficient detail to allow for application of the pertinent rating criteria. The report should specifically note all pathology, symptoms (frequency and severity), and associated functional impairment found. Range of motion studies must be completed, and must include active and passive motion with and without weight-bearing. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 7. The AOJ should issue an appropriate statement of the case (SOC) addressing the Veteran's September 2014 notice of disagreement appealing the rating for his service-connected neck disability. The Veteran and his representative should be afforded an opportunity to respond and, if a timely substantive appeal is filed, the matter should be returned to the Board for appellate consideration. 8. The AOJ should then review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C.A. §§ 5109B, 7112 (2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs