Citation Nr: 18144211 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-18 517 DATE: October 24, 2018 ORDER Service connection for obstructive sleep apnea is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. Service connection for unspecified edema is denied. service connection for a bladder disorder is denied. REMANDED Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Service connection for non-ischemic cardiomyopathy (heart condition), to include as secondary to diabetes mellitus, is remanded. Service connection for hypertension, to include as secondary to diabetes mellitus, is remanded. A rating in excess of 10 percent for right status post arthroscopic surgery and meniscal debridement (right knee disorder) is remanded. A rating in excess of 10 percent for left status post arthroscopic surgery and meniscal debridement (left knee disorder) is remanded. A rating in excess of 20 percent for diabetes mellitus is remanded. A rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. A rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is remanded. A total disability rating for compensation based on individual unemployability (TDIU) is remanded.   FINDING OF FACT Sleep apnea, COPD, edema and a bladder condition are not shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for unspecified edema have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for a bladder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1983 to October 2003. The case is on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for a compensable rating was denied in the January 2013 rating decision. Thereafter, an April 2016 rating decision increased the left knee rating to 10 percent effective May 17, 2012. Although a higher rating has been assigned by the RO for the left knee disability, the increased rating matter remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). With regard to the claims of service connection for sleep apnea, COPD and edema, additional evidence was received subsequent to the April 2016 statement of the case (SOC), including VA treatment records. However, the Board finds that the additional evidence is cumulative to that already of that already of record, or not pertinent to the claims. Thus, a remand for an SSOC is not necessary for these three claims. See 38 C.F.R. § 20.1304(c). In July 2016, the Veteran’s representative raised the issue of a TDIU in conjunction with the appeal for a higher rating for his service-connected diabetes mellitus. Therefore, this issue will also be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The record has revealed psychiatric symptoms of PTSD and depression. Therefore, the scope of the issue on appeal has been recharacterized more broadly as service connection for a psychiatric disorder, to include PTSD and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Regarding the bladder claim, the VA medical records show a diagnosis of a gallbladder condition. However, the gallbladder and bladder are not the same organs. Rather, they are commonly and generally understood to be separate and distinct. To this extent, the Veteran has given no indication that he intended to include a gallbladder condition within the scope of the bladder claim. As such, the claim does not include the gallbladder. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons, 23 Vet. App. 1. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 167 (Fed. Cir. 2004)). Service connection for obstructive sleep apnea, COPD, edema and a bladder disorder. The Veteran’s service treatment records show no complaints, treatment, or documentation pertaining to a sleep disorder, including sleep apnea, COPD, edema, or a bladder disorder. The Veteran receives medical treatment through VA. VA treatment records have listed sleep apnea, COPD, diabetic macular edema and gallbladder disease in the medical history, including records from May 2015 and June 2017. With regard to the claim for a bladder disorder, there is no indication of a current diagnosis. In February 2016, the Veteran denied bladder problems. The Veteran did not submit additional lay or medical evidence tending to show his sleep apnea, COPD, edema or bladder disorder were related to service or that they had onset during service. Further, the available VA medical records do not contain evidence suggesting a link between service and these conditions. The Board finds there is a lack of lay or medical evidence showing that any of the claimed disorders were incurred during service; no complaints or treatment for the disorders was noted in service; and no competent evidence suggests a possibility of a nexus to service. Thus, a VA opinion or examination addressing direct service connection is not necessary for the four service connection claims. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board finds the preponderance of the evidence is against the claims for sleep apnea, COPD, edema and a bladder disorder. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the four service connection claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Service connection for depression is remanded. Following the Veteran’s June 2016 claim for service connection for depression, VA obtained updated VA treatment records which include psychiatric treatment notes. A May 2017 VA record showed the Veteran reported “a lot of anger” and the examiner indicated he suffers from PTSD and major depressive disorder. The examiner noted that the Veteran reported multiple traumatic experiences in the military and that he has difficulty with explosive anger, hypervigilance, concern with safety, poor sleep, flashbacks, isolation and anxiety. As the evidence supports the Veteran may suffer from PTSD and/or depression, and that such may be related to in-service traumatic experiences, the evidence currently meets the low threshold for obtaining a VA examination as to the psychiatric issue. See 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for a heart condition and hypertension. The Veteran contends that his non-ischemic heart disorder and hypertension are related to his service-connected diabetes mellitus. Alternatively, he contends the disorders are directly related to service. The Veteran was afforded a January 2011 VA examination in which he was diagnosed with non-ischemic cardiomyopathy. The examiner indicated the disorder is less likely than not secondary to his diabetes mellitus. He stated diabetes is not known to cause non-ischemic cardiomyopathy and based on cardiologist’s records, the Veteran likely had a viral prodrome which led to the development of the heart disorder. He indicated the Veteran also has hypertension which is a risk factor for the development of non-ischemic cardiomyopathy, but does not have heart manifestations which are known to be complications of type 2 diabetes mellitus. With regard to the hypertension claim, the Veteran was afforded a September 2011 VA examination in which the examiner did not diagnose hypertension. She indicated the prior January 2011 examination was the first evidence that the Veteran was hypertensive, but there was no objective evidence of hypertension during the September 2011 examination. A February 2016 representative’s statement was submitted which indicated the Veteran was diagnosed with hypertension and a heart disorder prior to his discharge in October 2003. She asserted whether or not the two disorders are related to his service-connected diabetes, they may be directly related to service. The Board notes an August 2003 service treatment record noted hypertension and coronary artery disease in the Veteran’s medical history. Thereafter, a June 2016 medical opinion was received which indicated the Veteran’s cardiac condition and hypertension are related to his diabetes mellitus. In light of this evidence, the Veteran should be afforded another VA examination in connection with his claims for service connection for a heart disorder and hypertension to determine if the disorders are related to his service-connected diabetes, or otherwise directly related to service. 3. Increased ratings for the knee disorders. The Veteran contends that his service-connected right and left knee disabilities should be evaluated at more than 10 percent disabling. In this regard, the Veteran was afforded a VA examination in December 2012. However, before these claims may be adjudicated, VA must obtain more detailed range of motion findings and findings regarding functional loss, per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). Thus, the Veteran should be scheduled for a new VA examination for the knee disorders. 4. Increased ratings for diabetes mellitus, and bilateral lower extremity peripheral neuropathy. The Veteran was afforded a VA examination for his service-connected diabetes mellitus in May 2014. The examiner indicated treatment required for his diabetes included prescribed oral hypoglycemic agent(s) and insulin requiring more than one injection per day. She stated the Veteran has no regulation of activities and receives treatment due to episodes of ketoacidosis and hypoglycemia less than two times per month. She further noted peripheral neuropathy of the bilateral lower extremities, including mild right lower extremity tingling and numbness and moderate left lower extremity tingling and numbness. Thereafter, a June 2016 medical opinion was received from Dr. G.B. which was suggestive of worsening diabetes symptoms. As evidence has been received supporting that the Veteran’s diabetes has worsened since the May 2014 VA examination, a new VA examination should be afforded to the Veteran to determine the severity of the disorder. See also Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran’s service-connected bilateral lower extremity peripheral neuropathy should also be assessed, as the disabilities are associated with his diabetes. 5. Entitlement to a TDIU. Lastly, the Veteran’s claim for a TDIU is intertwined with the remanded increased rating claims. The Board also notes that the record does not contain a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability. While on remand, the RO should request that the Veteran complete and return such form. These matters are REMANDED for the following action: 1. Provide the Veteran with the TDIU application VA Form 21-8940 and ask him to complete and return it. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of any diagnosed psychiatric disorder(s). All tests deemed necessary should be conducted and the results reported. The examiner should determine whether the Veteran has a current psychiatric disorder, including whether he meets the criteria for a diagnosis of PTSD under the DSM criteria. If PTSD cannot be diagnosed, the examiner should address the indication of PTSD in the Veteran’s VA treatment records. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disorder had its onset during, or is otherwise related to, active service. If PTSD is diagnosed, the underlying stressor(s) should be identified. 3. Schedule the Veteran for a VA examination by an appropriate medical profession to determine the nature and etiology of his current heart disorder and hypertension. All tests deemed necessary should be conducted. The examiner should indicate any heart and/or hypertension diagnoses. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the heart condition and/or hypertension had onset during, or are otherwise directly related to, his active service. If not, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any current heart condition and/or hypertension are caused or aggravated by the Veteran’s service-connected diabetes mellitus. 4. Schedule the Veteran for a VA examination by an appropriate medical professional to assess the severity of the service-connected knee disabilities. This should include testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing settings. If flare-ups are found, but the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. If this cannot be done, it should be explained why. In addition, the examiner should assess any impact on occupational functioning experienced by the Veteran due to his bilateral knee disabilities. 5. Schedule the Veteran for a VA examination by an appropriate medical professional to assess the severity of the service-connected diabetes mellitus, and right and left lower extremity peripheral neuropathy. In addition, the examiner should assess any impact on occupational functioning experienced by the Veteran due to his diabetes, and bilateral peripheral neuropathy. A complete rationale should be provided for all opinions reached. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel