Citation Nr: 1806135 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-12 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for obesity. 2. Entitlement to service connection for obstructive sleep apnea. 3. Entitlement to service connection for a heart disorder, to include atrial fibrillation and heart disease. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for an eye disorder, to include diabetic retinopathy. 6. Entitlement to service connection for a liver disorder. 7. Entitlement to service connection for diabetes. 8. Entitlement to service connection for chronic fatigue syndrome (CFS). 9. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, depression, and anxiety. 10. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1980. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned in an August 2014 videoconference hearing, the transcript of which is of record. The Board notes that multiple 90 day extension requests were granted during the pendency of this appeal, and the record reflects that additional evidence was submitted and associated with the record after the most recent October 2016 supplemental statement of the case. This evidence was accompanied by a waiver of initial review by the RO, and the Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2017). When this case was previously before the Board in November 2014, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. The Veteran changed representatives during the pendency of the appeal; Joseph R. Moore is recognized as his current attorney. With regard to the claims for increased rating for lumbar spondylosis with bilateral lower extremity radiculopathy and for allergic rhinitis, the Veteran filed a Notice of Disagreement (NOD) in July 2015. As the RO has acknowledged receipt of the NOD and additional action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized and remand pursuant to Manlincon is not warranted at this time. The issues of entitlement to earlier effective dates for the award of service connection for lumbar spondylosis with bilateral lower extremity radiculopathy and for allergic rhinitis have been raised by the record, to include in May 2015 correspondence and a July 2015 NOD, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In November 2017 and prior to the promulgation of a decision in the appeals of the issues of entitlement to service connection for obesity, a liver disorder, CFS, and an acquired psychiatric disorder, to include bipolar disorder, depression, and anxiety, the Veteran requested that the appeals be withdrawn. 2. The Veteran does not currently have obstructive sleep apnea. 3. A heart disorder, to include atrial fibrillation and heart disease, was not shown in service or for many years thereafter, and has not been shown to be related to service or to a service-connected disability. 4. Hypertension was not shown in service or for many years thereafter, and has not been shown to be related to service or to a service-connected disability. 5. An eye disorder was not shown in service or for many years thereafter, and has not been shown to be related to service or to a service-connected disability. 6. Diabetes was not shown in service or for many years thereafter, and has not been shown to be related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of entitlement to service connection for obesity, a liver disorder, CFS, and an acquired psychiatric disorder, to include bipolar disorder, depression, and anxiety, by the Veteran have been met. 38 U.S.C.A. § 7105 (b) (2), (d) (5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C.A. §1131(West 2014); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for a heart disorder, to include atrial fibrillation and heart disease, have not been met. 38 U.S.C.A. §1131(West 2014); 38 C.F.R. § 3.303 (2017). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §1131(West 2014); 38 C.F.R. § 3.303 (2017). 5. The criteria for service connection for an eye disorder have not been met. 38 U.S.C.A. §1131(West 2014); 38 C.F.R. § 3.303 (2017). 6. The criteria for service connection for diabetes have not been met. 38 U.S.C.A. §1131(West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Service Connection Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In correspondence received in November 2017, the Veteran withdrew the appeal regarding the issues of entitlement to service connection for obesity, a liver disorder, CFS, and an acquired psychiatric disorder, to include bipolar disorder, depression, and anxiety and, therefore, there remain no allegations of errors of fact or law for appellate consideration regarding those issues. Accordingly, the Board does not have jurisdiction to review the appeals regarding the claims for service connection for obesity, a liver disorder, CFS, and an acquired psychiatric disorder, to include bipolar disorder, depression, and anxiety, and they are dismissed. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a December 2009 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, and VA examination reports. The Veteran was provided a hearing before the undersigned in August 2014. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). These claims were remanded in November 2014 to obtain outstanding treatment records and afford the Veteran VA examinations in regards to his claimed diabetes and heart disorders, including atrial fibrillation, heart disease, hypertension and sleep apnea. A request for records was sent in January 2015 and additional treatment records, to include those submitted by the Veteran, were subsequently added to the electronic claims file. The Veteran's attorney also noted in November 2017 that additional records were not available and should not be sought by the Board. The Veteran was also afforded examinations in June 2016. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). (CONTINUED ON NEXT PAGE) Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). Service connection is available for a disease or disability that is proximately caused by a service connected disease or disability; and for the aggravation of a non-service connected disability by a service connected disease or disability. 38 C.F.R. § 3.310 (2017). Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309. Hypertension, diabetes, and organic heart disease are considered to be "chronic diseases" under 38 C.F.R. § 3.309. Therefore, service connection for these disabilities on a presumptive basis is to be considered. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Claim - Sleep Apnea The Board finds that the Veteran's claim for service connection for obstructive sleep apnea fails as Hickson element (1) is not met. To this point, VA treatment records reflect that the Veteran has been noted to have "possible" and "probable" obstructive sleep apnea. A sleep study was scheduled in December 2009 to verify whether the Veteran did, in fact, have obstructive sleep apnea; however, the Veteran has repeatedly declined testing. Further, although an October 2012 private medical opinion from Dr. C.B. diagnosed the Veteran with sleep apnea, a sleep study or physical examination was not conducted by Dr. C.B., as such, his opinion regarding a diagnosis of sleep apnea is of limited probative value. In response to the Board's remand, the Veteran was afforded a VA examination in June 2016 in which the examiner stated that sleep apnea has been suspected but never definitely confirmed present as the Veteran has not had a sleep study done thus far (has declined). The Veteran submitted a private medical opinion in November 2017 in which Dr. P.C. stated that according to the Berlin Questionnaire, the Veteran would be deemed high risk which correlated with more severe obstructive sleep apnea. Dr. P.C. did not diagnose sleep apnea. The Veteran's attorney argues in November 2017 correspondence that despite the lack of a formal sleep apnea diagnosis, the Veteran suffered from the hallmark symptoms of the condition, including snoring and frequent apneic episodes. The Board finds that the record does not contain any competent and probative evidence of a confirmed diagnosis of sleep apnea at any point during the appeal. As such, the Veteran does not have a current sleep apnea disability, and as a result, service connection for sleep apnea cannot be granted. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Veteran is competent to testify as to his beliefs that he has obstructive sleep apnea, and his family members and spouse are competent to testify as to his symptoms. However, there is nothing in the record to suggest that the Veteran, or his family members, have the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding diagnosis or etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the diagnosis or etiology of any current condition, as such are not readily subject to lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Claims - Heart Disorder, Hypertension, Eye Disorder, Diabetes VA and private treatment records show diagnoses of atrial fibrillation and hypertension in October 2009, glaucoma in October 2013, and type II diabetes since 2013. Accordingly, Hickson element (1) is met for these claims. The Veteran contends that his heart disorder, hypertension, eye disorder and diabetes are caused by his service-connected lumbar spondylosis. Essentially, the Veteran asserts that his service-connected lumbar spondylosis caused functional limitations, obesity, and caused these claimed disabilities. Accordingly, Hickson element (2) is at least arguably met for these claims. The Veteran submitted a private opinion in October 2012 by Dr. C.B. in which it was noted that he had gained a significant amount of weight since service "due to his spine injury and inability to exercise." According to Dr. C.B., the Veteran's diabetes, eye disorder, and heart disorders were caused by his excessive weight gain due to lower back problems and inability to ambulate properly. In the November 2014 remand, the Board found that the October 2012 medical opinion was inadequate as the examiner did not provide a rationale or discussion as to how each of these disorders was related to the Veteran's weight gain, which was purportedly caused by the service-connected lumbar spine disability. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In fact, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Veteran was provided a VA examination in June 2016 in which the examiner stated that there was no medical evidence to suggest lumbar spondylosis aggravates obesity. The examiner opined that there was no medical evidence to suggest lumbar spondylosis causes obesity. The examiner stated that there were alternate forms of physical exercise/activities to include water aquatics/exercises and stationary bicycles, which avoid the weightbearing portion of other forms of physical exercises, such as walking. In addition to alternate forms of exercise, diet (balanced nutrition) was well known and documented in the medical literature as a recommended treatment to avoid weight gain, maintain appropriate weight, or to lose weight. The examiner stated that it was more likely than not that his obesity was due to genetic susceptibility, excessive food intake, and progressive lack of physical activity. The examiner stated that there was no written medical evidence that his service-connected lumbar spondylosis (or potentially the low back pain) played a significant role in the progressive obesity and proximately caused the obesity or resulted in regulation of activities, including all forms of physical exercise, such as walking, etc. and/or resulted in an inability to ambulate. The examiner stated that regarding his service-connected allergic rhinitis, the medical literature did not sustain that such condition causes obesity, either directly or secondarily, nor any aggravation of the obesity. In the June 2016 VA examination, the examiner opined that neither diabetes mellitus, heart disorder including atrial fibrillation, nor hypertension had their onset in service or manifested to a compensable degree within a year of service separation; the examiner noted the times in which the Veteran was diagnosed with these disabilities. The VA examiner noted that the Veteran did not have any diabetic retinopathy, only glaucoma, and glaucoma has not been known to be caused or aggravated by obesity. The examiner noted that the Veteran had atrial fibrillation (AF), and obesity could have contributed to cause the AF and /or to the perpetuation of the AF, not to aggravation as it had not been worse/remained stable (i.e. unchanged). However, the examiner noted that stating that obesity was the direct or the only cause of his AF or hypertension was pure speculation as other etiologic factors could had been involved; it was important to realize that obesity leads to a multiple factor disorder, and it was not possible to rule out a single mechanism that was responsible for the linking of obesity to AF or hypertension. The Veteran submitted a private medical opinion in November 2017 in which Dr. P.C. stated that although there may be a genetic component in the rare patients with AF and no other risk factors, patients like the Veteran with obesity and hypertension develop AF in response to those diseases. Dr. P.C. stated that obesity and resultant inactivity were by far the most important risk factors in the development of non-insulin dependent diabetes mellitus. Dr. P.C. opined that the service-connected lumbar spondylosis more likely than not contributed to the Veteran's eventual morbid obesity; the medical literature was clear that back pain leads to physical inactivity and obesity. Dr. P.C. stated that this morbid obesity, in turn, was a significant risk and contributing factor to the Veteran's development of AF, hypertension, and diabetes. Dr. P.C. also outlined lay statements from the Veteran's family members and treatment reports, highlighting the functional limitations caused by his service-connected lumbar spondylosis. To this point, the Veteran's April 2010 VA examination for his back, it was noted that he could walk more than a fourth of a mile but less than one mile. It was noted that he had decreased mobility, lack of stamina, and pain; his back had mild effects on his chores and moderate effects on his exercise and sports. Moreover, the Veteran's spouse stated in September 2012 that his back caused an inability to move heavy furniture and moving boxes, and he would strain when holding their daughter. His sister stated in September 2012 that he could not walk for any length of time without stopping to rest, and he could not carry anything too heavy, but was able to help assemble a patio table and chairs and flip the chairs. In his June 2016 VA examination for his back, it was noted that he would go into the swimming pool to do press strokes and would move and stretch after prolonged sitting. It was noted that he had pain, difficulty with prolonged sitting, and would occasionally use a cane. The Board notes that greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). After considering the entirety of the evidence of record, the Board finds the opinion from the June 2016 VA examiner to be more probative than those provided by the private examiners. The June 2016 VA examiner's opinion is well-supported and consistent with the documented record, to include the Veteran's treatment records and statements by his family members. Accordingly, the Board concludes that the VA opinions carry significant weight. Obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis if a previously service-connected disability caused him to become obese, that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). However, the Board finds that the VA examiner made it clear that it was her opinion that the Veteran's service-connected disabilities did not cause or aggravate his obesity. Moreover, she opined that neither diabetes mellitus, heart disorder including atrial fibrillation, nor hypertension had their onset in service or manifested to a compensable degree within a year of service separation. That is, medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). The examiner instead found that obesity was caused by genetic susceptibility, excessive food intake, and progressive lack of physical activity. In regards to physical activity, the examiner noted that the service-connected lumbar spondylosis (or potentially the low back pain) did not result in regulation of activities, including all forms of physical exercise, such as walking, etc. and/or result in an inability to ambulate. The examiner noted that diet and alternate forms of physical exercise/activities were well known and documented in the medical literature as a recommended treatment to avoid weight gain, maintain appropriate weight, or to lose weight. As outlined above, the Veteran's service-connected back disability limited his ability to move heavy objects, although he was able to help assemble and move furniture. He was also able to swim and walk, albeit in a limited capacity. As such, the Board does not find that obesity is an intermediate step between the Veteran's service-connected disabilities and the current disabilities on appeal under 38 C.F.R. § 3.310 (a). With regards to presumptive service connection for hypertension, diabetes, and a heart disorder, the weight of the evidence shows no chronic symptoms of these disabilities during service, no continuous symptoms since service, and that the diagnoses for these disabilities did not manifest to a compensable degree within one year of service. To this point, service treatment records are absent for any showing of chronic symptoms, testing, or diagnosis for these disabilities, and the first mention of hypertension, diabetes, and a heart disorder in the record is not until years after service. As such, presumptive service connection is not warranted. In reaching these determinations, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). ORDER The appeals regarding the issues of entitlement to service connection for obesity, a liver disorder, CFS, and an acquired psychiatric disorder, to include bipolar disorder, depression, and anxiety, are dismissed. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for a heart disorder, to include atrial fibrillation and heart disease, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for an eye disorder is denied. Entitlement to service connection for diabetes is denied. REMAND The Veteran maintains that his disabilities render him unable to sustain gainful employment. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, even when the percentage requirements are not met, entitlement to a TDIU may nonetheless be granted when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). The Veteran does not meet the schedular requirements of 38 C.F.R. § 4.16 (a) for a TDIU. He is currently in receipt of a 10 percent rating for lumbar spondylosis with bilateral lower extremity radiculopathy and a noncompensable rating for allergic rhinitis. The Veteran's combined disability rating is 10 percent. The issues of entitlement to increased ratings for lumbar spondylosis with bilateral lower extremity radiculopathy and for allergic rhinitis are pending at the AOJ. Because the Veteran does not currently meet the schedular criteria for assignment of a TDIU and because a determination with respect to the increased ratings claims may have an impact upon consideration of the issue of entitlement to a TDIU, the Board finds that those issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, consideration of the claim for entitlement to a TDIU must be deferred until the AOJ resolution of the claims for increased ratings. Accordingly, the case is REMANDED for the following action: After resolving the Veteran's pending claims of entitlement to increased ratings for lumbar spondylosis with bilateral lower extremity radiculopathy and for allergic rhinitis, readjudicate the claim of entitlement to a TDIU. If the benefit is not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs