Citation Nr: 1804269 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-28 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a disability manifested by loss of balance, to include as secondary to service-connected bilateral chronic otitis media with postoperative residuals, scar. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to December 1993. These matters come before the Board of Veterans' Appeals (Board) from March 2012 and April 2013 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas. These matters initially came before the Board in June 2015. At that time, they were remanded for additional development. The Board also remanded the Veteran's claim of entitled to an increased evaluation for service-connected major depressive disorder. In a January 2017 rating decision, the RO awarded an increased 50 percent rating for major depressive disorder. By way of a February 2017 correspondence, the Veteran's attorney indicated that the Veteran accepted his 50 percent evaluation and was withdrawing his appeal for this issue. Thus, the matter is no longer in appellate status. The issues of entitlement to service connection for sleep apnea and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Loss of balance is a symptom of the Veteran's service-connected bilateral chronic otitis media with postoperative residuals, scar. CONCLUSION OF LAW A disability manifested by loss of balance, was not incurred in or aggravated by active service nor shown to have been caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § § 3.303, 3.310 (2017); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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 also finds that there has been compliance with the June 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection The Veteran contends he has a separate disability manifested by loss of balance that is distinct from his service-connected bilateral otitis media with postoperative residuals. By way of a January 2017 rating decision, the Veteran's bilateral otitis media with posteruptive residuals was amended to include the symptom of loss of balance. The claim remains in appellate status because this does not constitute a grant of service connection, the benefit sought on appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) 6the 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2017). The Veteran submitted a claim of entitlement to service connection for loss of balance in October 2010. He contends that he has a separate disability manifested by this symptom and that the disability is secondarily related to his service-connected chronic otitis media. In June 2015, the Board remanded the Veteran's claim of entitlement to service connection for a disability manifested by loss of balance for an examination to determine whether the Veteran has such a disability and to obtain a medical opinion as to the etiology of any such disability. In an October 2015 VA examination, it was noted that the Veteran developed chronic otitis media and was diagnosed with cholesteatoma, subsequently undergoing five surgeries with inner ear down surgery and mastoidectomy. Among the symptoms noted in relation to this history was balance disturbances with disorientation when the Veteran would move rapidly. VA provided an ear conditions (including vestibular and infections conditions) examination in December 2016. The examiner summarized the Veteran's medical history, noting that the Veteran had a history of chronic bilateral Eustachian tube dysfunction, including recurrent cholesteatoma with at least five previous surgeries done on the left ear. The most recent surgery was conducted in September 2003 when the Veteran had a canal-wall-down mastoidectomy that included mastoid obliteration with bone pate, cranial bone graft, and placement of Silastic into the middle ear space. The Veteran had also had multiple PE tubes in the right ear. During the clinical interview, the Veteran described having a long history of perceived balance issues. He reported that if he arose or moved his head too quickly, he would experience of a sensation of imbalance and dizziness, but not true vertigo. He would close his eyes for a "couple" of seconds until the symptoms clear. An electronystagmography (ENG) had been performed, showing a very hyperactive response to monothermal caloric stimulation in the left ear. Otherwise, all other subtests were normal. The examiner addressed the Board's question on remand that asked whether loss of balance represented a separate and distinct disease entity or was a symptom of the Veteran's service-connected bilateral chronic otitis media with postoperative residuals, scar. The examiner explained that the etiology of the Veteran's symptoms of recurrent dizziness is unclear. The December 2016 ENG was unremarkable with the exception of a very hyperactive response to monothermal caloric stimulation in the left ear, which was the ear with a prior canal-wall-down procedure, potentially rendering the December 2016 results to be a normal finding and thus rendering comparison of caloric responses of the two ears invalid. The examiner noted, however, that the Veteran was adamant that his recurrent dizziness occurred subsequent to his most recent surgery in the left ear performed in September 2003, and the examiner explained that he would have no reason to doubt the Veteran's reports. The examiner acknowledged that at the time of the September 2003 procedure, there was a notation that a cochlear fistula was present, and that could well account for his symptoms of dizziness and imbalance. In any case, the Veteran should be given the benefit of the doubt. Thus, found the examiner, it is at least as likely as not that the Veteran's loss of balance is a symptom of his service-connected bilateral chronic otitis media with postoperative residuals, scar. Thus, to summarize, the Veteran's difficulties with balance have been attributed to his service-connected otitis media with postoperative residuals. Despite the favorable nexus opinion provided by the December 2016 examiner, this symptom does not constitute a separate disability for which service connection is warranted. In other words, his loss of balance is a symptom already compensated by his service connection for chronic otitis media, and not a separate disability which can be service connected. Separate service connection for the Veteran's loss of balance would constitute unlawful pyramiding of symptoms. See 38 C.F.R. § 4.14. As such, the Veteran's claim fails for this reason. The Board acknowledges the argument provided by the representative in February 2017 that contended that the Veteran's loss of balance should be separately rated under DC 6204, which evaluates peripheral vestibular disorders. However, this is a disagreement with the current rating assigned for the Veteran's underlying service-connected chronic otitis media with postoperative residuals, with loss of balance, scar. That issue is not on appeal, and the Board encourages the Veteran to submit a claim of entitlement to an increased rating if he wishes to have his loss of balance separately evaluated. At present time, discussion of the rating assigned for such a symptom is not within the Board's jurisdiction. To the extent the Veteran has claimed that loss of balance is a distinct disability that is secondarily related to otitis media, as opposed to a symptom of otitis media, the Board finds that his statements are not competent lay evidence. Although it is error to categorically reject a lay person as competent to provide a diagnosis, not all such questions are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a medical opinion depends on the facts of the particular case. "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the diagnosis of the Veteran's claimed disorder, which is an internal medical processes not capable of lay observation, is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Regardless, the Veteran's assertions are outweighed by the medical evidence of record, which is more probative as it is based upon medical expertise. In short, the Veteran's claim must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a separate disability manifested by loss of balance is denied. REMAND Regarding the Veteran's claim of entitlement to service connection for sleep apnea, the claim must be remanded for an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In February 2017, the Veteran's representative asserted that it has been repeatedly shown that sleep apnea is extremely common in people who suffer from depression. The Veteran's representative submitted a report of a study pertaining to the association of psychiatric disorders and sleep apnea. VA provided an examination for this claim September 2017. The examiner cited to UpToDate in noting that depression is not identified in medical literature as a significant risk factor for the development of sleep apnea, whereas male gender and obesity are clearly established risk factors. The examiner opined that sleep apnea was not caused by service-connected depression. However, no opinion on aggravation was provided. Further, the examiner referred to medical literature that was unfavorable to the Veteran's claim. No discussion was provided regarding medical literature submitted by the Veteran in February 2017. On remand, an adequate opinion must be obtained that addresses whether service-connected depression has aggravated sleep apnea and accounts for all medical literature submitted by the Veteran. Next, remand is required for the Veteran's claim of entitlement to service connection for hypertension. In June 2015, the Board remanded this claim to provide an examination. The examiner provided an opinion with rationale for the Veteran's claim on direct and presumptive theories of entitlement. However, in February 2017, the Veteran's representative argued that it was widely known that sleep apnea puts one at high risk for hypertension. Thus, the Veteran's claim of entitlement to service connection for hypertension is inextricably intertwined with the service connection claim for sleep apnea. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sleep apnea. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea was caused by the Veteran's service-connected major depressive disorder. b. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the sleep apnea was aggravated (permanently worsened) by the Veteran's service-connected major depressive disorder. In rendering this opinion, the examiner must address medical literature submitted by the Veteran and his representative in February 2017. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs