Citation Nr: 18142617 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-00 488 DATE: October 16, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for tinnitus is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, to include as secondary to tinnitus is granted. Whether new and material evidence has been received to reopen a previously denied claim for service connection for sleep apnea is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. Entitlement to service connection for a cardiovascular disability, to include as secondary to tinnitus is remanded. Entitlement to service connection for hypertension, to include as secondary to tinnitus is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for skin cancer. FINDINGS OF FACT 1. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code (DC) 6260. 2. The evidence of record shows that the Veteran’s acquired psychiatric disorder, diagnosed as depressive disorder, was caused by the service-connected tinnitus and bilateral hearing loss. 3. In an unappealed December 2012 rating decision, the RO denied service connection for sleep apnea. 4. Additional evidence received since the December 2012 rating decision is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for service connection for sleep apnea. 5. The evidence of record shows that the Veteran’s service connected sleep apnea was permanently aggravated by his service-connected tinnitus and now-service-connected depressive disorder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, DC 6260 (2018). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, as secondary to tinnitus and bilateral hearing loss, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (20185). 3. The December 2012 rating decision, wherein the RO denied service connection for sleep apnea, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 4. Evidence received since the December 2012 rating decision is new and material to the service connection claim for sleep apnea; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for service connection for sleep apnea, based on aggravation by service-connected disabilities, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Navy from August 1962 to May 1964. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Initial Rating Claim-Tinnitus The Veteran seeks an initial rating in excess of 10 percent for tinnitus. Throughout the current appeal period, the Veteran has been in receipt of a 10 percent disability rating for bilateral tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260. Under Diagnostic Code 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87 (2015); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As the maximum schedular rating for tinnitus under Diagnostic Code 6260 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for a disability rating in excess of 10 percent for bilateral tinnitus must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. Service Connection Claim-Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder. He contends that he has a psychiatric disorder, claimed as depression, that is secondary to his service-connected tinnitus. (See Veteran’s December 2012 statement to VA). After a discussion of the laws and regulations governing service connection, the Board will analyze the merits of the claim. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. 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). Further, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309, such as arthritis. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 C.F.R. § 3.102 (2015); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence supports an award of service connection for an acquired psychiatric disorder, currently diagnosed as depressive disorder, as secondary to the service-connected tinnitus and bilateral hearing loss. Evidence in support of the claim on a secondary basis is a January 2016 report, prepared by H. H. G., M. D. After a mental status evaluation of the Veteran and review of the evidence of record, Dr. H. H-G. opined that the Veteran’s service-connected tinnitus and bilateral hearing loss had caused his depressive disorder. (See January 2016 report, prepared by Dr. H. H-G., at page (pg.) 26)). Dr. H. H-G. bolstered her opinion with medical literature that supported an association between tinnitus and co-morbid psychological disorders, to include a high prevalence of anxiety and depression in individuals who suffered with tinnitus. In addition, according to Dr. H. H.-G., those individuals who suffered from bilateral hearing loss were more inclined to experience anxiety, social isolation, frustration and depression. Id. The Board finds Dr. H. H.-G’s opinion to be probative and well-reasoned and supported by medical literature and, notably, other evidence of record. Dr H. H-G’s opinion is supportive of the claim for a depressive disorder on a secondary basis and is uncontroverted. Accordingly, the Board finds that service-connection for a depressive disorder is warranted as secondary to his service-connected tinnitus and bilateral hearing loss. See 38 U.S.C § 5107; 38 C.F.R. §§ 3.303, 3.310; Allen. C. New and Material Claim-Sleep Apnea The Veteran seeks to reopen a previously denied claim for service connection for sleep apnea. He maintains that he has sleep apnea that is secondary to his service-connected tinnitus. (See Veteran’s December 2012 statement to VA). After a brief discussion of the laws and regulations governing new and material evidence, the Board will analyze the merits of the claim. Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156 (a) defines “new and material evidence.” “[N]ew evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran asserts that his sleep apnea is related to his service-connected tinnitus. The RO denied the claim in a December 2012 rating action, which found the medical evidence of record failed to show that this disability had been caused by his service-connected tinnitus. As the Veteran did not file a timely notice of disagreement, or submit new and material evidence within one year, the December 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. As noted above, the Board must address whether new and material evidence has been received to reopen the claim for service connection claim for sleep apnea regardless of the RO’s decision to reopen the claim. See Jackson v. Principi, supra. Evidence received since the final December 2012 rating action, includes, but is not limited to, a March 2016 report, prepared by H. S. M.D. Dr. H. S. opined that the Veteran’s service-connected tinnitus and now-service-connected depression had permanently aggravated his obstructive sleep apnea. (See H. S. M. D.’s March 2016 report). Dr. H. S.’s March 2016 report is new because it was not of record at the time of the RO’s final December 2012 rating acton. This report is also material. It is material because it relates to an unestablished fact, namely establishing a relationship between the service-connected tinnitus (and depression) and the Veteran’s obstructive sleep apnea. For this reason, the Board finds Dr. H. S.’s March 2016 report to be new and material, and the claim for service connection for sleep apnea must be reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010); 38 C.F.R. 3.156 (a). Having reopened the claim for service connection for sleep apnea, the Board will address the merits of the claim. As noted above, the Veteran claims service connection for sleep apnea that is secondary to the service-connected tinnitus. As the regulations pertinent to the Veteran’s service connection claims (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310) have been discussed previously herein, they will not be repeated here. The Veteran maintains that he has sleep apnea as a result of sleep-related problems caused by his service-connected tinnitus. (See Veteran’s December 2012 statement to VA). The Board will grant service connection for sleep apnea as secondary to the service-connected tinnitus and now-service-connected depression. Evidence against the claim includes a VA physician’s December 2012 opinion. After a review of the record and medical literature discussing a relationship between tinnitus and sleep apnea, the VA examiner opined, “After much literature review I could not find a direct causal relationship for tinnitus causing sleep obstructive apnea. There are many study showing certain sleep disturbance problems associated with tinnitus but there is no clinical studies that showed tinnitus causing sleep obstructive apnea.” (See December 2012 VA opinion). The Board finds the VA physician’s opinion to be probative in evaluating the claim because it is well-reasoned and supported by medical literature. Evidence is support of the claim is a March 2016 report, prepared by H. S. M. D. After an examination of the Veteran and a review of the medical record, to include Dr. H. H. G.’s January 2016 report, Dr. H. S opined that the Veteran’s tinnitus, periodic limb movement disorder, which was caused by his tinnitus, and depression had permanently aggravated his sleep apnea. In support of his conclusion, Dr. H. S., referenced medical studies that discussed the relationship between psychiatric disorders and obstructive sleep apnea, noting that subjects with depression, as compared to non-depressed subjects, had a higher prevalence of sleep apnea diagnosis. Dr. H. S. also bolstered his opinion by citing to a November 2012 report, authored by Dr. I. R. In that report, Dr. I. R. related that he had treated the Veteran since 1997 for sleep-related issues, as well as tinnitus. Dr. I. R. noted that the Veteran’s tinnitus was, at times, an issued for the Veteran as it had disrupted the quality of his sleep. The Board finds Dr. H. S.’s opinion to be probative and well-reasoned and supported by medical literature and, notably, other evidence of record, such as Dr. I. R.’s November 2012 opinion. Dr H. S.’s opinion is supportive of the claim and uncontroverted. In light of the VA examiner’s and Dr. H. S’s opinions, the Board concludes that the evidence against and in support of the claim for service connection for sleep apnea is at least in relative equipoise. Thus, the Board will resolve any reasonable doubt in the Veteran’s behalf and will grant service connection for sleep apnea as secondary to the service-connected tinnitus and now-service-connected depression. See 38 U.S.C § 5107; 38 C.F.R. §§ 3.303, 3.310; Allen. REASONS FOR REMAND The Board finds that prior to further appellate review of the remaining initial rating and service connection claims, additional substantive development is required. Specifically, to obtain missing VA treatment records and to schedule the Veteran to determine the nature and etiology of his hypertension. The Board will discuss each reason for remand below. A. Missing VA treatment records-All Claims In the appealed March 2015 rating decision, the RO referenced treatment records from the VA Medical Center (VAMC) in Minneapolis, Minnesota, dated from June 17, 2014 to September 30, 2014. (See March 2015 rating action). However, on review of the Veteran’s Veterans Benefits Management System (VBMS) and Legacy Content Manager Document (LCMD) electronic record, these reports are absent. The Board notes that VA treatment records, dated from June 23, 2015 to September 27, 2016, are of record, but records prior to June 23, 2015 are absent. Thus, the missing VA treatment records referenced in the March 2015 rating action, as well as any ongoing treatment records, should also be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). B. VA examination-Hypertension claim The Veteran seeks service connection for hypertension. The Veteran contends that he has hypertension that is secondary to his service-connected tinnitus. (See Veteran’s December 2012 statement to VA). The Veteran has been diagnosed with hypertension. (See November 2012 report, prepared by Dr. I. M., wherein he related that the Veteran’s poor sleep had played some role in the need for increased blood pressure management. (See Dr. I. M’s November 2012 report). While Dr. I. M.’s report does not directly attribute the Veteran’s hypertension to the service-connected sleep apnea, it does intimate a relationship between the two (2) disabilities. Thus, the Board finds that an examination is necessary to determine the etiology of the Veteran’ hypertension prior to any further review of the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2018). The matter is REMANDED for the following action: 1. Obtain the Veteran’s treatment records from the VAMC in Minneapolis, Minnesota, dated from June 17, 2014 to September 30, 2014, and all records dated from September 27, 2016. All attempts to obtain these records must be documented in the claims file. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The electronic claims file must be made accessible 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. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset in, or is otherwise related to, his period of military service. (Continued on the next page)   The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the hypertension is caused or aggravated (permanently worsened) by the service-connected tinnitus and now-service-connected sleep apnea. The examiner must specifically consider a November 2012 report, authored by Dr. I. M., noting that the Veteran’s poor sleep had played some role in the need for increased blood pressure management. (See Dr. I. M’s November 2012 report). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel