Citation Nr: 1756065	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  14-38 319	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or asthma.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for bilateral pes planus.


REPRESENTATION

Veteran represented by:	Dan Curry, Attorney


ATTORNEY FOR THE BOARD

  M. D. Bruce, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 2000 to September 2000 and from February 2002 to October 2005, including service in Afghanistan.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office and were remanded in August 2017.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to service connection for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The probative, competent evidence is in favor of a finding that the Veteran's obstructive sleep apnea is aggravated by his service-connected PTSD and asthma.

2.  The probative, competent evidence is against a finding that the Veteran's hypertension is related to or had onset within one year of his active duty service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for obstructive sleep apnea on the basis of aggravation by a service-connected disability have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).

2.  The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Board has thoroughly reviewed all of the evidence in the Veteran's claims file.  Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided herein.  The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).  When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d). 

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain disabilities, including hypertension, manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1101, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. 

Service connection may also be established on a secondary basis for a disability that is shown to be either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Obstructive Sleep Apnea

The Veteran asserts that he has obstructive sleep apnea related to his active duty service or, alternatively, which is caused or aggravated by his service-connected disabilities including PTSD and asthma.  As the claim is favorably resolved on a secondary basis, the Board will not address the theory of direct service connection.

The record reflects a diagnosis of obstructive sleep apnea.  Accordingly, the remaining question for resolution is whether the disorder is caused or aggravated by the Veteran's service-connected disabilities. 

The Veteran underwent VA examination in connection with his claim in September 2017.  The examiner diagnosed obstructive sleep apnea and opined that it was less likely than not related to any sleep disorder or sleep apnea, although it appears that the examiner intended to state that it was not related to service.  The examiner further opined that obstructive sleep apnea was less likely than not related to the Veteran's asthma or PTSD.  In support of the opinions, the examiner noted the Veteran's body habitus and that the Veteran's service treatment records were unremarkable for signs of sleep apnea and that he did not seem tired during the examination despite reporting daytime hypersomnolence.  The examiner also noted that the Veteran's asthma was well-controlled and that there was no mention in the treatment records about PTSD causing sleep apnea.  

In October 2017, the Veteran submitted a report from a private physician, Dr. M.P.  Dr. M.P. reviewed the Veteran's treatment records, including the September 2017 VA examination report, and opined with a reasonable degree of medical certainty that the Veteran's PTSD and asthma contribute to or aggravate his sleep apnea.  In support of the opinion, Dr. M.P. cited to medical literature indicating that sleep apnea can be aggravated by PTSD and linking sleep apnea with a higher prevalence of PTSD, as well as studies showing a relationship between asthma and sleep apnea.  Dr. M.P. also noted flaws in the VA opinion, specifically the examiner's apparent suggestion that the Veteran may not have sleep apnea due to his appearance during the examination and failure to address the body of medical literature suggesting that asthma and PTSD can aggravate sleep apnea.  

Upon review, the Board finds the October 2017 report from Dr. M.P. more probative than the September 2017 VA opinion.  In that regard, Dr. M.P. reviewed the record and cited to relevant medical literature in support of the opinion provided, while the VA examiner relied heavily on an absence of evidence rather than providing a sound medical basis for the opinion.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion).  

Accordingly, service connection for obstructive sleep apnea is granted as it has been aggravated by service-connected disability.  

Hypertension

The Veteran asserts that his current hypertension began in or is otherwise related to his active duty service.  

The record reflects a current diagnosis of hypertension, as well as some elevated blood pressure readings during service.  Accordingly, the remaining question for resolution is whether the Veteran's hypertension is related to service or had onset in or within one year of service.  

The Veteran underwent VA examination in connection with his claim in September 2017.  The examiner diagnosed hypertension and opined that it was less likely than not related to service.   In support of the opinion, the examiner noted that the Veteran's service treatment records reflected intermittent increased blood pressure in conjunction with an increase in severe pain, but did not show an elevated blood pressure for at least three consecutive days without pain or distress as required for a diagnosis of hypertension.  Furthermore, the examiner noted that, while the Veteran separated from military service in 2005, hypertension was not diagnosed until 2012, at which time he began taking medication to treat the condition.  The examiner concluded that careful evaluation of the Veteran's service treatment records, civilian medical records, examinations, and medical literature indicated that the Veteran's hypertension was more likely related to his body habitus and lifestyle than to service.

Upon review, and considering all of the evidence, the Board finds that the most probative evidence is against a finding that hypertension is related to the Veteran's service or manifested in or within one year of service.  In that regard the Veteran has asserted that his hypertension began during service and that he was advised to monitor his blood pressure.  He has also made these statements to at least one clinician who listed such in the medical history.  However, while lay persons are competent to report on what they have experienced or witnessed, the diagnosis of hypertension requires medical testing and expertise to determine.  Thus, as a lay person, the opinion of the Veteran as to the onset of his hypertension is not competent medical evidence.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  As such, the Board finds the September 2017 VA opinion to be of greater probative value than the lay contentions of record, and finds that the most probative and credible evidence is against a finding of hypertension during service or within one year of the Veteran's separation from service, and is against a finding that hypertension is otherwise related to service. 

Thus, for all the foregoing reasons, the claim for service connection hypertension is denied.  In reaching the decision to deny this claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule, but it is not for application because the most probative evidence of record is against the claim.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.


ORDER

Entitlement to service connection for obstructive sleep apnea is granted on the basis of aggravation by a service-connected disability.

Entitlement to service connection for hypertension is denied.


REMAND

While further delay is regrettable, the Board finds additional development is necessary before a decision may be rendered in the remaining issue on appeal.  

Pursuant to the Board's August 2017 remand order, an additional examination and opinion were obtained with respect to the Veteran's claim for entitlement to service connection for bilateral pes planus in September 2017 by the same examiner who evaluated the Veteran in October 2014.  Upon review, the Board finds the opinion insufficient for purposes of determining service connection.  In that regard, while the examiner was specifically directed to address the Veteran's in-service complaint of foot pain and the change from mild to moderate severity of pes planus noted from entrance to separation, the examiner again erroneously stated that pes planus was not reported on the entrance examination and did not address the in-service complaint of foot pain.  Furthermore, the examiner did not provide a sufficient rationale for the negative opinions provided.  Accordingly, the Board finds remand is again warranted so that an addendum opinion may be provided by a different examiner.

Updated relevant treatment records should also be associated with the claims file.  38 U.S.C. § 5103A(c) (2012).

Accordingly, the case is REMANDED for the following actions:

(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.  Ask the Veteran to identify all outstanding treatment records relevant to the claim for entitlement to service connection for pes planus.  All identified VA records should be added to the claims file.  All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran.  If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 

2.  After the above development has been completed to the extent possible, send the claims file to an examiner other than the examiner who provided the October 2014 and September 2017 examinations for an addendum opinion regarding the Veteran's pes planus.  If an examination is deemed necessary to respond to the request, one should be scheduled.  Following review of the claims file, the examiner should respond to the following:

a.  Is it at least as likely as not (50 percent probability or greater) that the Veteran's pes planus increased in severity during service?

b.  If the answer to the above question is yes, was pes planus clearly and unmistakably not aggravated by service? That is, is it clear and unmistakable that any in-service increase in severity was as a result of the natural progression of the condition?

In providing these opinions, the examiner must address the in-service complaints of foot pain and the change from mild to moderate severity noted from entrance to separation, and must provide a complete medical rationale for any opinion stated.  

3.  After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claim on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for appellate consideration, if in order. 

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 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).




______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs