Citation Nr: 1801728 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-30 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for left leg disability. 4. Whether new and material evidence has been received to reopen the claim for service connection for psychiatric disability, including bipolar disorder. 5. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder and posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for sleep apnea. 7. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to March 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). 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). There were prior unappealed RO rating decisions denying service connection for psychiatric disorder, including bipolar disorder, most recently in July 1999, with notice to the Veteran, and without new and material evidence having been received within 1 year thereafter. These decisions are final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). The Veteran has applied to reopen, and new and material evidence in the form of a September 2015 private medical opinion relating the Veteran's bipolar disorder to service has been received. Previously, no competent medical evidence had been of record relating psychiatric disability to service. Accordingly, the claim is reopened. See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). This claim is considered to include the matters of entitlement to service connection for any acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), bipolar disorder, and one causing memory loss. FINDINGS OF FACT 1. The Veteran's current bilateral sensorineural hearing loss disability was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 2. The Veteran's current hypertension disability was not manifest in service or to a degree of 10 percent within 1 year of separation and is unrelated to service. 3. Any current left leg disability was not manifest in service and is unrelated to service. 4. In an unappealed July 1999 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a psychiatric disability, including bipolar disorder; no new and material evidence was received within one year of the notification of that decision. 5. New and material evidence has been received since the July 1999 denial of service connection for a psychiatric disability. 6. The Veteran's current psychiatric disorder is bipolar disorder which is related to service. 7. The Veteran's current sleep apnea was caused by his service-connected bipolar disorder. 8. The Veteran's current headache disorder was caused by his service-connected bipolar disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016). 2. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016). 3. The criteria for service connection for left leg disability are not met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 4. Evidence received since the July 1999 RO decision which denied service connection for a psychiatric disability, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.302, 20.1103 (2017). 5. The criteria for service connection for bipolar disorder are met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 6. The criteria for service connection for sleep apnea are met. 38 C.F.R. § 3.310 (2016). 7. The criteria for service connection for headaches are met. 38 C.F.R. § 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013). Cardiovascular-renal disease, including hypertension; and organic disease of the nervous system, including sensorineural hearing loss; are listed as chronic diseases. Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496-97(1997)); see 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's currently demonstrated bilateral sensorineural hearing loss disability, as the preponderance of the evidence indicates that it was not manifest in service or to a degree of 10 percent within 1 year of separation and that it is unrelated to service. Service treatment records are silent for reference to hearing loss disability and it is not shown until years post-service. A VA examiner in August 2016 concluded that it is less likely than not that the current hearing loss disability of either ear is related to service. The reasons for the negative nexus opinions were that the Veteran's service treatment records showed normal hearing at enlistment and discharge, with no significant threshold shifts in service. The examiner noted that the Veteran was never assigned to an occupational specialty, and therefore, no indicators for acoustic trauma are noted. The examiner indicated that the Veteran reported exposure to missiles and jet engines in service, and noted that currently, he had only a mild to moderate sensorineural hearing loss, and felt that the Veteran's hearing loss could be attributed to the natural aging process. To summarize, the Veteran's current bilateral hearing loss disability was not manifest in service or to a degree of 10 percent within 1 year of separation and the preponderance of the evidence does not support a finding of continuity of symptomatology. Instead, it was first shown many years after service, and the preponderance of the evidence indicates that it is unrelated to service, and that it is attributable to the natural aging process. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's current hypertension, as the preponderance of the evidence indicates that it was not manifest in service or to a degree of 10 percent within 1 year of separation and that it is unrelated to service. The Veteran's service treatment records are silent for reference to hypertension, his blood pressure was normal on service discharge examination in March 1978, and his current hypertension is not shown until May 2009, which was years post-service. At the time, he stated that he had taken medications for hypertension years ago, but there is no evidence that he had it in service or to a degree of 10 percent within 1 year of separation, and no medical evidence relates it to service. Further, the preponderance of the evidence is against a finding of continuity of symptomatology. Based on the evidence, the Board concludes that service connection is not warranted for any current left leg disorder, as the preponderance of the evidence indicates that it was not manifest in service and is unrelated to service. Service treatment records are silent for reference to a left leg disorder. The Veteran had a negative history on service discharge examination in March 1978, and he was clinically normal at the time. Any current left leg disorder is not shown until years post-service. No medical evidence relates any current left leg disorder to service, and the Veteran's recent reports of possible left leg problems in service, detailed in recent VA medical records (including in May 2009 and as reported in a December 2013 VA examination report), lack credibility as they are inconsistent with information in his service treatment records, including at the time of his service discharge examination in March 1978, when he did not report having or having had a left leg problem and his left leg was found to be normal. Based on the evidence, the Board finds that service connection is warranted for the Veteran's currently diagnosed psychiatric disorder, bipolar disorder. The medical evidence reflects that, although the Veteran has primarily been diagnosed with bipolar disorder during the course of this appeal (see September 2015 DBQ diagnosing bipolar disorder and no other psychiatric disability and VA treatment records), the Veteran has also been diagnosed with other psychiatric disorders in the course of this appeal, including a cognitive disorder. Certain VA treatment records also assess PTSD. However, the Board notes that the preponderance of the evidence is against a finding that service connection for PTSD is warranted as the preponderance of the evidence is against a finding that the Veteran currently has PTSD due to a confirmed in-service stressor. Regardless, grant of service connection for bipolar disorder is a full grant of the benefit claimed as it is intended to include all his psychiatric symptomatology, however diagnosed. A September 2015 DBQ and report from a private psychologist diagnosed bipolar disorder, based on a mental status examination, review of the evidence of record, medical literature, and the Veteran's reports of symptoms. In service in December 1978, he reported depression due to family problems and was felt to have depressive psychosis, characterized by massive confusion. His symptoms also included anxiety, poor judgment, and stress. An MMPI was consistent with a psychotic break. Adult situational reaction was also reported. Service treatment records state that his wife had left him and that he was getting a divorce and worried about his son, who later records show he has never seen since the age of 5. He was AWOL from January 3, 1978 to February 16, 1978, and he accepted an other than honorable discharge in order to be discharged from service. While he was found to be normal on service discharge examination in March 1978, only fair judgment was shown at the time, and service treatment and personnel records reasonably demonstrate that his mental status in service played a part in his Chapter 10 service discharge. Post service, he has been diagnosed with bipolar disorder on a number of occasions, and a private psychologist's September 2015 medical opinion adequately relates it to service. That psychologist reviewed the Veteran's medical history in detail, reported that his family described how he returned home from service a different person, and felt, based on an interview and a review of the Veteran's claims folder, that his bipolar disorder more likely than not began in service and continued uninterrupted to the present. Reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board finds that a December 2013 VA psychiatric examination report, indicating in part that the Veteran has no mental disorder, that the examiner could not make a diagnosis without resorting to mere speculation, and that bipolar disorder is not related to service because there is no diagnosis of bipolar disorder, lacks probative value. As that report notes, the Veteran had had periods of homelessness for the past 10 years, and he was anxious, irritable, and depressed. Other medical records contained in the claims folder and outlined by the Veteran's private psychologist in September 2015 contradict the December 2013 VA examination report by showing a number of diagnoses of bipolar disorder. Based on the evidence, the Board finds that service connection is warranted for sleep apnea. Service treatment records do not show sleep apnea, and no evidence relates it to service. However, a private physician reported in December 2015 that sleep studies confirming that the Veteran has sleep apnea had been conducted in 2009 and February 2012. The physician stated that research has shown that psychiatric disorders are commonly associated with obstructive sleep apnea; that Veterans with sleep apnea have higher rates of depression; and that treatment of sleep apnea with C-PAP decreases both sleep apnea and psychiatric symptoms. Based on the physician's experience and an interview with the Veteran, he stated that he feels that it is as likely as not that the Veteran's depression aided in the development and permanently aggravates his obstructive sleep apnea. The Board finds that this statement, when reasonable doubt is resolved in the Veteran's favor, is sufficient to show direct causation by the Veteran's bipolar disorder. As such, secondary service connection pursuant to 38 C.F.R. § 3.310 is warranted. Based on the evidence, the Board finds that service connection is warranted for headaches. Service treatment records reflect that the Veteran reported headaches when he was assessed with depressive psychosis in December 1977, although the Veteran denied having or having had them on service discharge examination in March 1978. However, a private physician noted in December 2015 that the Veteran has been diagnosed with bipolar disorder and that medical research states that patients with mental health conditions are more likely to develop headaches because pain and mood are regulated by the same part of the brain. The physician spoke with the Veteran in December 2015 and learned that when the Veteran's bipolar condition is bothering him, he notices it bring on a migraine. The examiner noted that the Veteran reported his headaches began in service and have continued. Thus, the examiner felt that the Veteran has migraine headaches that are brought on by his bipolar disorder. The Board finds that this statement, when reasonable doubt is resolved in the Veteran's favor, is sufficient to show headaches are caused by the Veteran's bipolar disorder. As such, secondary service connection pursuant to 38 C.F.R. § 3.310 is warranted. ORDER Service connection for bilateral hearing loss disability is denied. Service connection for hypertension is denied. Service connection for left leg disability is denied. As new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability, the claim is reopened. Service connection for the bipolar disorder is granted. Service connection for sleep apnea is granted as secondary to the Veteran's service-connected bipolar disorder. Service connection for migraine headaches is granted as secondary to the Veteran's service-connected bipolar disorder. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs