Citation Nr: 1752586 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-05 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for fibrocystic breast disease. 2. Entitlement to service connection for bronchitis. 3. Entitlement to service connection for ovarian cyst. 4. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD). REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from December 1984 to October 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2012 and September 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. While the Veteran additionally appealed the denial of a claim of entitlement to service connection for otitis media, that claim was subsequently granted in a January 2017 rating decision, thereby resolving the Veteran's appeal with respect to that claim. The issues of entitlement to service connection for bronchitis and for ovarian cyst are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on her part. FINDINGS OF FACT 1. The Veteran's fibrocystic breast disease had its onset during active service. 2. The evidence is at least evenly balanced as to whether the Veteran's obstructive sleep apnea was caused by service-connected PTSD with MDD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for fibrocystic breast disease have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 3.304 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for obstructive sleep apnea, as secondary to service-connected PTSD with MDD, have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder; or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected dis ability. 38 C.F.R. § 3.310. I. Fibrocystic Breast Disease The evidence establishes that the Veteran has current fibrocystic breast disease. A February 2012 VA examination report clearly delineated a diagnosis of fibrocystic breast disease. Review of the Veteran's service treatment records (STRs) reveals that she reported for treatment after finding a small lump in her right breast in August 1988. The reported noted that she also reported breast tenderness. The assessment was probable fibrocystic disease. Treatment records dated since the Veteran's separation from service records contain multiple entries reflecting the appearance of cysts in the Veteran's breasts. A May 2001 private report indicated the presence of a cystic mass apparently in the right breast. July 2010 and June 2013 private treatment reports indicated that the Veteran had had a cyst in her left breast that was previously present in 2009. During the February 2012 VA examination, the examiner described the Veteran's condition as consisting of lumpy breasts. The examiner provided the opinion that the Veteran's fibrocystic breast disease was at least as likely as not incurred in or caused by a claimed in-service injury, event, or illness. The examiner's reasoning was that the Veteran had noted fibrocystic breast disease during service in August 1988, and that the symptoms had persisted and were documented in mammograms. Based on the VA examiner's fully informed, fully articulated, and well-reasoned opinion, which explained that the Veteran's fibrocystic breast disease was incurred during service and has continued to persist since, the Board finds that all elements for service connection for fibrocystic breast disease have been met. As the elements for service connection for fibrocystic breast disease are all demonstrated, service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In denying the Veteran's service connection claim for fibrocystic breast disease the AOJ specifically stated in the June 2012 rating decision and December 2013 statement of the case (SOC) that fibrocystic breast disease was "not a pathologic condition but a physiologic (or normal and nonpathologic) finding." There is no definitive medical or legal authority that answers the question of whether fibrocystic breast disease can constitute a disability for VA compensation purposes. There are non-precedential decisions of the Court and Board decisions that reflect that service connection has been granted for this disability. See, e.g., Clinger v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 245 (Feb. 25, 2010), and cases cited therein. Moreover, in Vatcher-Martin v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 1817 (Aug. 24, 2012), the Court specifically considered the assertion that fibrocystic breast disease was a "physiological manifestation," but did not find that an award of VA benefits for diagnosed fibrocystic breast disease was any way precluded as a matter of law. See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). In this case, a VA examiner has identified the Veteran's breast condition as a defined disability, fibrocystic breast disease; and has opined that the disability originated during and has continued since the Veteran's service. As VA regulations do not otherwise preclude the award of service connection for fibrocystic breast disease, entitlement to service connection for this disorder is warranted. II. Obstructive Sleep Apnea The evidence establishes that the Veteran has current obstructive sleep apnea. A January 2017 VA examination report noted a diagnosis of obstructive sleep apnea that was made in July 2008. The diagnosis was additionally noted in a July 2012 VA examination report, and the record contains the July 2008 sleep study report where sleep apnea was apparently first diagnosed. Additionally, service connection for PTSD was granted in a June 2012 rating decision, effective October 29, 2010. In support of her claim, the Veteran has provided letters from private treatment providers that attribute her obstructive sleep apnea to service-connected PTSD. In a July 2011 letter, James McDaniel, M.D., gave the opinion that it was at least as likely as not that the Veteran's sleep apnea and PTSD were related in that sleep apnea, with accompanying sleep deprivation, would make her PTSD worse. Dr. McDaniel further indicated, however, that it was not clear if her sleep apnea was related to her military service. In a January 2014 letter, Thomas Hollandsworth, M.D., provided the opinion that the Veteran's sleep apnea was the result of her obesity, which was, in turn, strongly correlated with her depression. In providing this opinion, Dr. Hollandsworth explained that both the Veteran's PTSD and depression, and the medication used to treat the conditions, contributed greatly to weight gain. As the Veteran has gained weight, she has also developed obstructive sleep apnea, which is strongly associated with obesity. The Board finds Dr. Hollandsworth's opinion to be well-informed, well-reasoned, and fully articulated. The opinion adequately describes the etiological relationship between the Veteran's obesity, likely the result of service-connected PTSD with MDD, to include as a result of medication, and her diagnosed sleep apnea. Based on this opinion, the Board finds that all elements for service connection for obstructive sleep apnea on a secondary, causation, basis have been met. See VAOPGCPREC 1-2017 (Jan. 6, 2017) (obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a)) In the report of the July 2012 VA examination, the VA examiner provided a negative opinion with respect to an etiological relationship between the Veteran's sleep apnea and her active service on a direct basis. While the examiner did not consider a secondary relationship between the Veteran's sleep apnea and her service-connected PTSD with MDD, the examiner did state that the Veteran's considerable weight gain appeared to be one of the primary causes of her current sleep apnea. Thus, this opinion further supports Dr. Hollandsworth's January 2014 opinion. Additionally, while the January 2017 VA examiner opined that the claimed sleep apnea was less likely than not proximately due to or the result of a service connected condition, the examiner only provided a cursory explanation noting that obstructive sleep apnea was a totally different diagnosis with no known relationship to PTSD. The examiner did not appear to consider the effects of the Veteran's PTSD with MDD on her weight gain, and the relationship between such weight gain and her diagnosed sleep apnea. As such, the January 2017 VA examiner's opinion is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning). Resolving reasonable doubt in the Veteran's favor, the elements for service connection for obstructive sleep apnea, as secondary to the service-connected PTSD with MDD, on a causation basis, are all demonstrated and service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In light of the favorable decision to grant the claims of entitlement to service connection for fibrocystic breast disease and obstructive sleep apnea, any deficiency as to VA's duties to notify and assist pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is harmless. ORDER Entitlement to service connection for fibrocystic breast disease is granted. Entitlement to service connection for obstructive sleep apnea, secondary to service-connected PTSD with MDD, is granted. REMAND Further development of the Veteran's claims of entitlement to service connection for bronchitis and for ovarian cyst is warranted before the Board can properly adjudicate those claims. With respect to the bronchitis, the Board notes that the Veteran's STRs reveal that she was treated for respiratory ailments on multiple occasions during service. In January 1988, she sought clinical treatment for respiratory infection that resulted in her losing her voice and caused difficulty breathing. The assessment at that time was laryngitis. A December 1988 clinical report noted that she reported for treatment after suffering from a cough for one week. The assessment was an upper respiratory infection. Following her separation from service, she sought treatment from a private provider in March 2012 for apparent bronchitis symptoms, which include productive cough, and additional symptoms of respiratory infection. The assessment was acute sinusitis and wheezing. The Veteran additionally affirmed in a statement accompanying her February 2014 substantive appeal (on VA Form 9), that she experienced problems with bronchitis during service, and that she has experienced problems since her separation from service. The Veteran was afforded a VA examination for claimed bronchitis in July 2012. The examiner indicated that she had a diagnosis of bronchitis made in 1986. The examiner gave the opinion that the Veteran's claimed bronchitis was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. In providing this opinion, however, the examiner, in seeming contradiction to the finding of bronchitis in 1986, indicated that there was no mention of chronic bronchitis or other lung condition on her separation examination and no medical/pulmonary documentation of any lung condition from her time in service until 2010, and that there is no mention of any other lung condition other than obstructive sleep apnea. The July 2012 VA examiner does not appear to address the Veteran's contentions or the evidence of record of respiratory infections during service and since the Veteran's separation from service, but rather appears to rely only on an absence of such evidence, the examiner's opinion is inadequate for determining the likelihood of an etiological relationship between the Veteran's claimed bronchitis and her active service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that her claim for service connection could be proven without contemporaneous medical evidence"); see also Nieves-Rodriguez, 22 Vet. App. at 304 (the probative value of a medical opinion comes from its reasoning). With respect to the Veteran's claimed ovarian cyst, her STRs document several instances of complications possibly representative of ovarian cysts, including in June 1985, February 1987, and July 1987. Additionally, since her separation from service, the medical evidence indicates that the Veteran has suffered from conditions involving her reproductive organs. She was seen in March 2005 for an apparent mass near her left psoas muscle. The report noted that this might involve a tiny ovary, and that further evaluation was needed to assess the condition of her left anexa. Additionally, the July 2012 VA examiner diagnosed a benign ovarian cyst at the time of the examination. The Veteran also asserted in her February 2014 VA Form 9 that she has continued to have problems with ovarian cysts since her separation from service. During in the July 2012 VA examination report, the VA examiner gave the opinion that the Veteran's ovarian cyst was less likely than not incurred in or caused by a claimed in service injury, event, or illness. The examiner's rationale was that there was no mention of any cyst/gynecological condition on her separation examination and no documentation of any medical diagnosis or treatment for a gynecological condition, such as ovarian cyst, from her time in service until the present. Again, the examiner appears to have relied on an absence of evidence in the record, without fully considering the medical evidence or the Veteran's lay contentions. See Buchanan, supra; Nieves-Rodriguez, supra. As the record does not contain an adequate etiological opinion with respect to the relationship between the Veteran's claimed bronchitis and ovarian cyst and her active service, remand is required to request new opinions with respect to these claimed disabilities. Accordingly, these claims are REMANDED for the following action: 1. Request an opinion from an appropriate specialist physician. The physician should review the claims file. The physician should state whether the evidence shows that the Veteran has had bronchitis or other respiratory disability at any time since approximately March 2011 when she filed her claim. The examiner must specifically address the March 2012 private treatment report, noting the Veteran's presentation for apparent bronchitis. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any properly diagnosed respiratory disability had its onset during active service or is related to any in-service disease, event, or injury, to include the noted respiratory infections noted in her STRs in January 1988 and December 1988. The physician must provide reasons for all opinions and conclusions reached, to include addressing the Veteran's lay contentions. The Veteran is competent to report symptoms and treatment and these reports must be taken into account in formulating the requested opinion. 2. Request an opinion from an appropriate specialist physician. The physician should review the claims file. Upon review of the medical evidence and the Veteran's lay contentions, the physician should indicate whether the Veteran has had an ovarian cyst at any time since approximately March 2011 when she filed her claim. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that ovarian cyst disability had its onset during active service or is related to any in-service disease, event, or injury, to include the noted instances involving possible ovarian cysts, including in June 1985, February 1987, and July 1987. The physician must provide reasons for all opinions and conclusions reached, to include addressing the Veteran's lay contentions. The Veteran is competent to report symptoms and treatment and these reports must be taken into account in formulating the requested opinion. 3. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs