Citation Nr: 1801951 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-11 184A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cerebrovascular accident (CVA). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for a cerebrovascular accident (CVA), to include as secondary to service-connected disability. 4. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disability. 5. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 6. Entitlement to service connection for the cause of the Veteran's death. 7. Entitlement to service connection for coronary artery disease for accrued purposes only. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. He died in February 2016. This matter comes before the Board on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In this case, the appellant is the Veteran's surviving spouse and has been substituted as the appellant for purposes of pursuing to completion the claims of entitlement to service connection for hypertension, and whether new and material evidence has been submitted to reopen claims of entitlement to service connection for OSA and a CVA (also claimed as a stroke). The Board notes there is an additional issue on appeal that the appellant has perfected, but that appeal is not yet ripe for Board review. When an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). Although the required notification was sent on December 9, 2017, regarding the issue of entitlement to an increased rating for PTSD, the Board declines to take any action on that issue at this time, as the letter was just mailed. This delay is needed to ensure that the appellant is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). The issue of entitlement to an increased rating for PTSD will be the subject of a later Board decision as appropriate. The issues of entitlement to service connection for hypertension, a CVA, OSA, cause of the Veteran's death, and CAD for accrued purposes, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A July 2004 rating decision that denied claims of entitlement to service connection for a cerebrovascular accident (CVA) and obstructive sleep apnea (OSA) was not appealed and no new and material evidence was submitted during the appeal period; the decision is final. 2. Some of the evidence received since that prior denial relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for a CVA and OSA. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and the claim of entitlement to service connection for a cerebrovascular accident is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been submitted, and the claim of entitlement to service connection for obstructive sleep apnea is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims of entitlement to service connection for a cerebrovascular accident (CVA) and obstructive sleep apnea (OSA) were previously denied in a July 2004 rating decision. The Veteran did not appeal, and new and material evidence was not received within a year of notice of the decision. Thus, the July 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§, 3.156(b), 20.302, 20.1103. The evidence considered at the time of the July 2004 rating decision consisted of the Veteran's service treatment records, VA treatment records, and private treatment records. The claims were denied because the Veteran's CVA and OSA were not found to have been caused by or to have occurred during service, and a CVA did not manifest to a compensable degree within a year of separation. The evidence received since that time includes an October 2011 VA opinion that the Veteran's "hypertension and prior stroke[] more likely than not began in[]service due to PTSD." The same opinion also stated that "sleep apnea [] as likely as not began in[]service." Similarly, a positive private opinion was offered in November 2016 in support of an association between the Veteran's PTSD and his OSA. Because such evidence, when presumed credible, relates to an unestablished fact necessary to substantiate the claims, namely, a nexus between the Veteran's CVA and OSA and service, it is new and material, and the claims of entitlement to service connection for a CVA and OSA are reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a cerebrovascular accident is reopened; to that extent only, the appeal is granted New and material evidence having been submitted, the claim of entitlement to service connection for obstructive sleep apnea is reopened; to that extent only, the appeal is granted. REMAND Additional development is required prior to adjudication of the reopened claims of entitlement to service connection for a CVA and OSA, and the claim of entitlement to service connection hypertension. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the hypertension claim, the Board finds that remand is necessary for an addendum opinion. A January 2013 VA examiner opined that the Veteran's hypertension was not caused by his PTSD. However, the examiner did not adequately address aggravation in this instance, nor did the examiner consider the effects of medication prescribed to treat PTSD. The Board points out that, in February 2016, the Veteran requested for his a PTSD a different medication that "did not increase his BP." Additionally, although the January 2013 VA examiner discussed "theoretically" that PTSD can cause intermittent increases in blood pressure, the Board observes that a May 2014 VA treatment note indicates that the Veteran's hypertension was "uncontrolled here due to PTSD." Furthermore, a private physician indicated in a November 2016 statement that research supported a clear correlation between psychological impairments such as anxiety and depression and elevated blood pressure. Although the foregoing positive evidence is certainly suggestive of a causal relationship between elevated blood pressure readings and psychologic symptoms, it is not dispositive of aggravation, which requires a permanent increase in severity. Thus, an additional opinion is necessary. Additionally, having reopened the CVA and OSA service connection claims, and given the October 2011 VA opinion suggesting an association between the Veteran's disabilities and service, the Board finds that a VA opinion should be obtained. That opinion should also address whether those disabilities were caused or aggravated by the Veteran's PTSD. In this regard, the Board notes that during VA treatment in January 2016, it was noted that the Veteran was only able to wear his CPAP machine approximately 60 percent of the time due to his PTSD. Additionally, a private November 2016 opinion supports a positive association between the Veteran's PTSD and his OSA and, consequently his CVA. To the extent that the October 2011 VA opinion is positive, it is insufficient to grant service connection for either disability given the complete lack of rationale. And, while a November 2015 VA examiner opined against a nexus between PTSD and OSA, the examiner did not address aggravation. Thus, an adequate opinion is still needed. The Board also recognizes that a November 2016 private physician opined that the Veteran's PTSD contributed materially and substantially to the development of hypertension and OSA, and that those conditions in turn contributed to the Veteran's stroke(s). However, the Board finds that there was not adequate (or any) discussion of the Veteran's specific clinical findings to support the opinions offered. In this regard, the Veteran in this case had an extremely significant, strong family history of both CVAs and cardiovascular problems, including hypertension, and earlier private treatment for hypertension does not show any association with or even discussion of PTSD or psychological symptoms. Indeed, the private November 2016 opinion offers no discussion or even awareness as to when the onset was of either the Veteran's hypertension or OSA, both opined to have developed as a result of his PTSD. The Board observes that it does not appear from private treatment records that the Veteran had complaints or a diagnosis of sleep apnea at the time of his strokes in 2001 or 2002. Those records also show that the Veteran's hypertension at the time of his stroke was poorly controlled due to medication noncompliance, without any mention of psychiatric problems. In any event, the Board finds that given the Veteran's significant medical and family medical history, and absent any discussion of the Veteran's specific clinical findings to support the opinions offered, the November 2016 opinion is not sufficient to establish service connection at this time. Next, given evidence that the Veteran received a significant amount of private medical treatment through Kaiser Permanente, efforts should be made to ensure all relevant private treatment records have been associated with the record. Additionally, any outstanding VA treatment records should be obtained. In this regard, in November 1989, it was noted that the Veteran had a history of hypertension five years earlier, suggesting earlier treatment upon which the diagnosis was rendered. Thus, efforts should be made to obtain any outstanding VA or private treatment records since service. As a final matter, the Board has taken jurisdiction of the issues of entitlement to service connection for cause of the Veteran's death and service connection for coronary artery disease for the limited purpose of ordering corrective action pursuant to 38 C.F.R. § 19.9(c) (2017) (codifying Manlincon v. West, 12 Vet. App. 238 (1999). In this regard, those claims were denied in an April 2016 rating decision, and the appellant filed a timely notice of disagreement with that decision in August 2016. However, it does not appear that a statement of the case (SOC) addressing those issues has been issued. The Board recognizes that VA's Veterans Appeals Control and Locator System (VACOLS) suggests that an SOC was issued on August 2, 2017. However, there is no SOC of record addressing service connection for cause of death or coronary artery disease and, while there is an SOC of record dated August 2, 2017, it addressed only the PTSD increased rating appeal. Importantly, a subsequent September 2017 rating decision specifically noted that the appellant's NOD relating to cause of death and coronary artery disease was pending. Thus, it does not appear that an SOC was actually issued, and remand is necessary for issuance of an SOC that addresses service connection for the cause of the Veteran's death and coronary artery disease for accrued purposes. See Manlincon, 12 Vet. App. at 239-41. Accordingly, the case is REMANDED for the following action: 1. After first ensuring that a statement of the case (SOC) has not already been issue on the claims of entitlement to service connection for the cause of the Veteran's death and entitlement to service connection for coronary artery disease for accrued purposes only, issue an SOC addressing those claims. 2. With any needed assistance from the appellant, obtain the authorization for release of any private treatment records pertaining to the Veteran's claimed conditions that are not already of record. Request any records properly identified. If any records cannot be obtained after reasonable efforts have been made, notify the appellant of the attempts made and allow her the opportunity to obtain the records herself. 3. After the development requested in item 2 has been completed to the extent possible, send the claims file to an examiner for review to determine the etiology of the Veteran's hypertension. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. 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 more) that the Veteran's hypertension first manifested during service or within a year following service; or that it is otherwise related to service? Please explain why or why not, specifically discussing evidence dated as early as November 1989 showing a history of hypertension five years prior. (b) If the Veteran's hypertension was not directly related to service, is it at least as likely as not (50 percent probability or more) that it was caused by the Veteran's service-connected PTSD? Please explain why or why not. (c) If the Veteran's hypertension was not caused by his service-connected PTSD, is it at least as likely as not (50 percent probability or more) that it was aggravated by his PTSD, to include medication used to treat PTSD? Please explain why or why not, specifically discussing the February 2016 concern of the effect of the Veteran's PTSD medication on his blood pressure, as well as an October 2011 VA opinion that the Veteran's PTSD symptoms have contributed to an elevated blood pressure, and a May 2014 VA treatment note indicating that the Veteran's hypertension was "uncontrolled here due to PTSD." If you find that the Veteran's hypertension was aggravated by his PTSD, please attempt to quantify the degree of aggravation beyond the baseline level of disability. 4. Send the claims file to an examiner for review to determine the etiology of the Veteran's CVA and obstructive sleep apnea. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. 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 more) that the Veteran's CVA or obstructive sleep apnea first manifested during service or within a year following service; or that it is otherwise related to service? Please explain why or why not. (b) If the Veteran's CVA or obstructive sleep apnea was not directly related to service, is it at least as likely as not (50 percent probability or more) that it was caused by the Veteran's service-connected PTSD? Please explain why or why not. (c) If the Veteran's CVA or residuals thereof, or obstructive sleep apnea was not caused by his service-connected PTSD, is it at least as likely as not (50 percent probability or more) that it was aggravated by his PTSD? Please explain why or why not, specifically discussing the January 2016 notation that the Veteran cannot wear his CPAP 60 percent of the time due to his PTSD. If you find that the Veteran's CVA or obstructive sleep apnea was aggravated by his PTSD, please attempt to quantify the degree of aggravation beyond the baseline level of disability. (d) If obstructive sleep apnea is determined to have been caused or aggravated by service or service-connected disability, and hypertension has not been, state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's OSA caused or aggravated his hypertension. Please explain why or why not, specifically addressing the January 2013 VA examiner's suggestion that the Veteran's OSA contributed at least in part to the Veteran's hypertension, and a January 2016 VA provider's report to the Veteran that "it is difficult to improve your blood pressure without first correcting sleep apnea,". (e) If hypertension is determined to be related to service or a service-connected disability, state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension caused or aggravated his CVA or residuals thereof. Please explain why or why not. A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and state why that is so. 5. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the appellant and her attorney and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs