Citation Nr: 1804119 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 17-12 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include an unspecified adjustment disorder, PTSD, a neurobehavioral disorder, trouble sleeping, and bipolar disorder. 2. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for headaches. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for residuals of basal ganglia infarction bilateral (claimed as stroke), to include as secondary to hypertension and sleep apnea, or due to trichloroethylene (TCE) exposure. 5. Entitlement to service connection for brain disease (also claimed as white matter disease), to include as secondary to sleep apnea, or due to TCE exposure. 6. Entitlement to service connection for traumatic brain injury (TBI), to include as secondary to sleep apnea, or due to TCE exposure. 7. Entitlement to service connection for chronic fatigue, to include as secondary to sleep apnea, or due to TCE exposure. 8. Entitlement to service connection for hypertension, to include as secondary to sleep apnea or due to TCE exposure. 9. Entitlement to a disability rating in excess of 10 percent for allergic rhinitis. 10. Eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35. REPRESENTATION Appellant represented by: Eric A. Gang, Esq. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to December 1976. He also served in the Air National Guard from December 1976 to September 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of this case is with the RO in Pittsburgh, Pennsylvania. The issue of entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised in the record. While the Board notes that, under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for entitlement to TDIU is part of a claim for an increased rating, there are no contentions in the record that the Veteran is unemployable due to his service-connected allergic rhinitis. As such, the claim of entitlement to a TDIU is not before the Board under the holding in Rice, and must be referred to the RO for appropriate action. The Veteran's representative filed a Freedom of Information Act (FOIA) and Privacy Act request for all medical opinions developed pursuant to the Board's remand directive. This was received at the VA Evidence Intake Center on 11/25/16. The Board remanded the case in 2015 for issuance of an SOC. It did not direct that any examination be conducted. No VA examinations were conducted pursuant to the Board's remand. In a letter dated December 2, 2016, the VA Records Management Center (RMC) acknowledged the receipt of the representative's request and informed the Veteran's reepresentativev that if any records were found, and not exempted from disclosure by law, it would provide the records. On August 4, 2017, VA received from the representative a motion to advance the Veteran's case on the docket and asked for a response as to the status of the Veteran's claims. The representative stated that a written status update or on all pending claims with VA or an immedicate adjudication was requested. In an August 18, 2017 letter the VA Records Management Center referred to a Privacy Act request dated August 4, 2017 and stated that it would grant access to the records, if found. Review of the record does not reveal any Privacy Act request dated or received on August 4, 2017. In an August 28, 2017 letter, the Board informed the Veteran and his representative that the motion to advance the case on the docket had been granted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). Thus, it appears to the Board that there are no any further actions that must be completed prior to addressing the Veteran's case. The Board is reopening the claim for entitlement to service connection for headaches herein. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim for service connection for headaches was denied in rating decision dated in March 2010; the Veteran did not perfect an appeal to the rating decision. 2. Evidence submitted since the March 2010 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for headaches and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied the claim of entitlement to service connection for headaches is final. 38 U.S.C.A. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Since the March 2010 rating decision, new and material evidence has been received, and the claim of entitlement to service connection for headaches is reopened. 38 U.S.C.A. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See id. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The Veteran initially claimed that he had a headache disorder secondary to temporomandibular joint disorder, which he felt was service-connected. In a March 2010 rating decision, the RO denied the Veteran's claim for entitlement to service connection for headaches. The RO found that the evidence did not show that temporomandibular joint disorder was related to service and, therefore, service connection for headaches on a secondary basis to this condition could not be established. The RO also found that there was no evidence showing headaches was incurred in or aggravated by military service, as service treatment records did not show treatment for or diagnosis of headaches. The Veteran did not file a notice of disagreement with this decision, and there was no new and material evidence added to the record within the relevant appeals period. As such, this decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103. In June 2012, the Veteran filed a claim contending that his headaches were secondary to exposure to TCE. In October 2012, the RO denied entitlement to service connection for headaches, finding that there was no evidence of exposure to TCE during active duty. Evidence at that time included a June 2012 VA examination with a finding that the Veteran did not have a headache condition. In May 2013, the Veteran filed to reopen all of his claims related to TCE exposure, including his claim for entitlement to service connection for headaches. In support of his claims for entitlement to service connection for several disabilities, including headaches, as due to in-service TCE exposure, the Veteran submitted a statement from a fellow service-member reasserting that they were exposed to TCE while on active duty, as it was used as a solvent to clean machinery. The Veteran's friend also reported exposure to other chemicals that he believed caused medical problems alleged by the Veteran. The Board finds that this information, in particular the specific allegations of exposure to TCE and other potentially harmful chemicals-constitutes new and material evidence. As this new and material evidence was submitted to the record within the appeals period of the October 2012 decision, the Board finds that the decision is not final. 38 C.F.R. §§ 3.156(b), 3.104, 20.302, 20.1103. Therefore the analysis of whether new and material evidence has been presented to reopen the Veteran's claim for entitlement to service connection for headaches is since the March 2010 decision. Since the March 2010 rating decision, the Veteran was provided with a VA headaches examination, wherein he was diagnosed with chronic tension-type headaches. The Board finds that this evidence is new because it was not before the adjudicator in March 2010. The Board also finds that the new evidence is material because it provides a new diagnosis of tension headaches and raises a reasonable possibility of substantiating the Veteran's claim for service connection for headaches. This evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for headaches. Hence, the appeal to this extent is allowed. ORDER New and material evidence with respect to the claim of service connection for headaches has been submitted; that claim is reopened, and to this limited extent, the appeal of that issue is granted. REMAND As an initial matter, a review of the record reveals that there are outstanding records that may be relevant to the Veteran's claims on appeal and therefore must be obtained. In April 2012, the RO attempted to obtain records from the Social Security Administration (SSA) regarding the Veteran's disability benefits. It was noted that a negative reply was received the following month. However, the Veteran submitted a statement indicating that he was granted SSA disability benefits effective March 2012, but was not informed of his award until August 2012. He requested that VA obtain his SSA records in August 2012, and his representative requested that VA obtain his SSA records in January 2014. It does not appear that the RO made another attempt to obtain these records. As such, on remand, the Veteran's SSA records should be obtained and added to the claims file. See 38 C.F.R. § 3.159 (c)(2) (2016); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran has contended that is hypertension is secondary to his service-connected sleep apnea, and his stroke and residuals therefrom, to include brain disease, are secondary to his hypertension. The Veteran submitted an opinion in March 2014 from T.K.G., MD COL (RET) USAF. The examiner noted that systemic hypertension was a well-documented health risk of sleep apnea and that sleep apnea was associated with vascular disease other than hypertension, including myocardial infarction and stroke. He indicated that an MRI had revealed "white matter disease more extensive than expected in a patient this age" and that it was more consistent with chronic microvascular ischemic demyelination. The examiner found that, in light of the documented association of sleep apnea with stroke and hypertension it was "no great leap" to deduce that the Veteran's longstanding sleep apnea was either a direct or an indirect causative factor of significance, and opined that sleep apnea and hypertension documented in his history as likely as not led to the microvascular changes and demyelinating disease found on MRI. The examiner found that, with the great body of literature documenting a strong causative connection between sleep disturbance and hypertension, it was as likely as not that the Veteran's hypertension was aggravated by his sleep apnea. The RO requested an opinion as to whether several of the Veteran's claimed disorders were secondary to his obstructive sleep apnea. VA provided an opinion in August 2016, which reflects the examiner's notation that sleep apnea was an anatomical/physiological disorder most commonly caused by airflow obstruction from the oropharynx to the lungs. The examiner found that there was no established clear evidentiary documentation that adequately and appropriately treated sleep apnea was the most predominant precipitant cause of the Veteran's physical and mental health conditions, ailments and symptoms. The examiner additionally found that the Veteran's conditions were very common throughout the general population who do not carry the diagnosis of sleep apnea. The examiner opined that it was less likely as not that "all of the above conditions" were due solely to his sleep apnea or to his active military service duties and activities that ended 40 years prior. The Veteran also submitted private medical opinion from a legal nurse consultant, dated in August 2016, reflecting her opinion that it was as likely as not that the Veteran's current stroke residual was the result of hypertension that was caused by sleep apnea. She noted that it was well known that sleep apnea can cause hypertension, and that hypertension is a risk factor for stroke. The examiner opined that the Veteran stroke was a result of the hypertension. The Veteran submitted another opinion from T.K.G., MD COL (RET) USAF in March 2017. The examiner noted that the Veteran suffered an occlusive stroke of the left middle cerebral artery at the age of 59, and that hypertension was a well-known causative factor in occlusive strokes. The examiner indicated that sleep apnea plays a causative role in developing hypertension and opined that it was possible that the Veteran's sleep apnea may have pre-dated his hypertension. However, regardless of the hypertension, the examiner noted that obstructive sleep apnea has direct adverse effects on vascular endothelium even without development of chronic hypertension. The examiner indicated that, while he agreed that the Veteran's smoking, his noncompliance with hypertension and obstructive sleep apnea treatment were also significant factors in causing his eventual stroke, in light of the documented association of sleep apnea with stroke and hypertension, he found that it was "no great leap" to deduce that his long standing sleep apnea was either a direct or an indirect causative factor of significance. For the following reasons, the Board finds that these are opinions are inadequate. These examiners did not provide adequate rationales for these opinions. The opinions provided from T.K.G, MD COL (RET) USAF and the private legal nurse consultant were based primarily on information in medical literature and generally accepted principles, but did not provide a rationale based on the Veteran's specific situation. The Board has considered the internet articles submitted in support of the Veteran's claim. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). The Board finds that the clinical findings and discussion of the history and cause of the Veteran's hypertension, stroke and brain disease in these opinions are not sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). As such, on remand, an opinion should be obtained as to whether the Veteran's hypertension is secondary to his sleep apnea, and whether residuals of his stroke, to include brain disease, are secondary to his hypertension or sleep apnea. With regard to the Veteran's headaches, the Board finds that a new examination is necessary. The Veteran has contended that his headaches are secondary to his service-connected obstructive sleep apnea. A VA opinion was obtained in July 2014; however, the examiner opined only that headaches were not caused by obstructive sleep apnea, and did not provide an opinion as to whether the Veteran's service-connected obstructive sleep apnea has aggravated his headaches. As such, the Veteran should be provided with a VA examination to determine whether his headaches have been worsened by his service-connected obstructive sleep apnea. The service connection claims remanded herein are inextricably intertwined with the claim for entitlement to DEA benefits since the adjudication of these claims may result in a higher combined disability rating and may result in a determination that the Veteran is permanent and totally disabled. Thus, the service connection claims must be decided by the AOJ before the Board can take action on the DEA claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 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. Request from SSA a copy of any disability determinations concerning the Veteran, as well as copies of all medical records underlying any such determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional records, schedule the Veteran for a VA examination to determine the etiology of his hypertension, basal ganglia infarction, and brain disease. All indicated tests and studies should be conducted. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner must provide opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension has been (i) caused (in whole or in part) or (ii) aggravated (has undergone a chronic increase in its severity) by his service-connected obstructive sleep apnea; (b) If the answer to (a) is yes, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's basal ganglia infarction (claimed as a stroke) was (i) caused (in whole or in part) or (ii) aggravated (has undergone a chronic increase in its severity) by his hypertension; (c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's brain disease has been (i) caused (in whole or in part) or (ii) aggravated (has undergone a chronic increase in its severity) by his service-connected obstructive sleep apnea or his stroke; The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the etiology of his headaches. All indicated tests and studies should be conducted. The claims file and this remand must be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's headaches have been (i) caused (in whole or in part) or (ii) aggravated (has undergone a chronic increase in its severity) by his service-connected obstructive sleep apnea. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. 4. Readjudicate the issues on appeal. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if 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). 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs