Citation Nr: 18144588 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-28 840 DATE: October 24, 2018 ORDER Reopening of entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus type II (DMII), is granted. Restoration of the severed service connection for urinary frequency with pyuria associated with DMII is granted. Entitlement to a total disability rating based on unemployability (TDIU) is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected DMII, is remanded. Entitlement to service connection for skin conditions (claimed as blackheads), to include as due to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. Entitlement to service connection for sleep apnea was denied in the March 2011 Rating Decision, which was not timely appealed and became final; new and material evidence was subsequently associated with the claims file. 2. The diagnosis on which service connection for urinary frequency with pyuria was predicated was not clearly erroneous. 3. The Veteran’s service-connected disabilities render him incapable of maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for restoration of the severed service connection for urinary frequency with pyuria have been met. 38 U.S.C. §§ 1110, 5112 (West 2012); 38 C.F.R. §§ 3.105, 3.310 (2017). 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 1157, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.340, 3.341, 4.15, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from October 1965 to April 1969, during which he was exposed to herbicide agents in the Republic of Vietnam (RVN). 1. Reopening Service Connection for Sleep Apnea In general, AOJ decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is that which is not cumulative or redundant of that previously of record; “material” evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). In the March 2011 Rating Decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for sleep apnea based on the September 2010 VA examiner’s opinion that there was no known medical association between sleep apnea and DMII. In the March 2011 Notification Letter, the Veteran was notified of the March 2011 Rating Decision and provided information on procedural and appeal rights. The Veteran did not timely appeal the March 2011 Rating Decision and it became final. Through a November 2012 VA Form 21-526b, the Veteran requested readjudication. In an October 2013 Rating Decision, the AOJ denied reopening based on no new and material evidence. Since the prior, final decision, the claims file was augmented with VA and Social Security Administration (SSA) medical records; the Veteran and his representative have also submitted several lay statements. See April 2011 VA general medical examination; June 2011 VA general medical examination; January 2013 Statement; Columbus VAMC treatment records (added to the claims file in October 2013 and April 2016); SSA medical records (added to the claims file in April 2016); May 2016 Letter to the Cleveland VARO; June 2016 VA Form 9; Columbus VAMC treatment records (added to the claims file in August 2016); August 2016 VA Form 9; October 2016 VA Form 9. Crucially, reopening is warranted based on the January 2013 Statement, in which the Veteran reported that information on the internet says that people with DMII have a 67 percent chance of having sleep apnea. As mentioned above, the March 2011 denial relied on the September 2010 VA examiner’s opinion that there was no known medical association between sleep apnea and DMII. Although the Veteran did not cite the information researched or provide a competent etiological opinion indicating that the general research was applicable to his specific disability picture, the Veteran is competent to report that publicly-available information exists that generally suggests an association between DMII and sleep apnea. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). After brief review of publicly-available information, the Board confirmed that general medical information exists suggesting an association. See Obstructive sleep apnoea and Type 2 diabetes mellitus: are they connected?, Singapore Med J. 2017 Apr; 58(4): 179–183, National Institute of Health, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5392601/, last accessed on October 5, 2018 (epidemiological evidence has demonstrated a “high prevalence” of sleep apnea in patients with DMII; the existence of a link between sleep apnea and DMII would be “unsurprising”). As even the general possibility of a medical association between sleep apnea and DMII would render the September 2010 VA examiner’s opinion inadequate without further rationale, it raises a reasonable possibility of substantiating the claim through medical clarification. Thus, the claim is reopened. 2. Restoring Service Connection for Urinary Frequency with Pyuria To sever service-connected disabilities that have been in effect for less than 10 years, VA must establish clear and unmistakable error (CUE) by showing that: (a) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (b) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (c) the error manifestly changed the outcome of the prior decision. 38 C.F.R. § 3.105(d); Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. 38 C.F.R. § 20.1403 (a). However, the analysis is not limited to the law and the record that existed at the time of the original decision; VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. For example, a change in diagnosis may be a basis for severance if the provider certifies that the diagnosis on which service connection was predicated is clearly erroneous; this certification must be accompanied by adequate rationale. 38 C.F.R. § 3.105 (d). The AOJ granted service connection for urinary frequency with pyuria associated with DMII in the December 2008 Rating Decision. In a June 2011 Rating Decision, the AOJ proposed to sever service connection based on: (a) the September 2010 VA examiner’s opinion that the Veteran had polyuria, rather than pyuria, associated with DMII and that reported urinary frequency appeared to be from the prostate; and (b) the June 2011 VA examiner’s opinion that urinary incontinence was self-diagnosed. In December 2011, the AOJ severed service connection, effective March 1, 2012. In the October 2014 Notice of Disagreement, the representative contended that: (a) the opinions were insufficient to meet VA’s clear and unmistakable error burden; (b) the opinions lacked probative value due to lack of rationale and internal inconsistencies; and (c) 38 C.F.R. § 4.14 anti-pyramiding provisions were not violated because the 20 percent rating for DMII does not contemplate urinary incontinence. The Board agrees that the September 2010 and June 2011 VA opinions are inadequate to support severance. The September 2010 examiner merely concluded, without rationale, that urinary frequency “appears to be” from the prostate, rather than from DMII; “appears to be” falls well below VA’s evidentiary burden of CUE. Further, the April 2011 examiner opined that the examiner who diagnosed pyuria “intended to type” polyuria instead and noted that pyuria refers to a high concentration of white blood cells in urine, while polyuria refers to excessive urine output; however, it is impossible for that intention to be clear without asking the diagnosing examiner directly and no analysis of white blood cell count was included to support the distinction. As both opinions fall short of VA’s burden to sever service connection and urinary symptoms are not already contemplated by the current DMII rating, restoration is warranted. See June 2011 Rating Decision (DMII rating continued at 20 percent based on requirement for an oral hypoglycemic agent and insulin). 3. TDIU Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain a substantially gainful occupation as a result of either: (a) a single service-connected disability ratable at 60 percent or more; or (b) 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). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran generally contends that he is unable to obtain and/or maintain substantially gainful employment because: (a) he urinates every 20 minutes in the mornings; (b) it is difficult for him to get up and down due to neuropathy; (c) standing irritates his neuropathy and arthritis; (d) looking at a computer screen makes his eyes tired and glazed over, which makes it hard to drive to/from work; (e) his hands feel like they fall asleep and have pins and needles; and (f) his knuckles ache and have rushes of hot blood moving from the knuckles into the fingers. See July 2010 Statement. The Veteran is currently service connected for: DMII with erectile dysfunction, hypertension, and renal insufficiency at 20 percent from March 2002; right upper extremity peripheral neuropathy and carpal tunnel syndrome at 20 percent from April 2008; left upper extremity peripheral neuropathy and carpal tunnel syndrome at 10 percent from April 2008 and 20 percent from April 2010; right lower extremity peripheral neuropathy at 10 percent from April 2008 and 20 percent from April 2010; left lower extremity peripheral neuropathy at 10 percent from April 2008 and 20 percent from April 2010; and bilateral hearing loss at 0 percent from April 2010. See October 2013 Codesheet. Further, because of the restoration herein, the Veteran is also service connected for urinary frequency with pyuria at 40 percent from April 2008. Id. After restoration of the urinary frequency with pyuria rating, the earliest date of schedular TDIU consideration is April 18, 2008, when the combined rating was 70 percent (including bilateral factor, cumulative disability totaled 74 percent, which rounds down to 70 percent). 38 U.S.C. §§ 1155, 1157; 38 C.F.R. §§ 4.25, 4.26. The August 2008 VA examiner noted the Veteran’s reports of: needing to urinate every 30 minutes in the daytime; waking up at least twice per night to urinate; problems with hesitancy, weak stream, urgency, and urge incontinence with occasional leaking; and two episodes of incontinence in the last year where he could not hold it and had accidents. The June 2011 VA examiner, who was not a vocational expert, opined that the Veteran was capable of employment in a sedentary work environment that includes both sitting and standing and has accessible restroom facilities. The Veteran’s representative contended that the examiner failed to: (a) address the full effect of the combined disabilities; and (b) provide adequate rationale. See October 2014 Notice of Disagreement. The Board agrees that the opinion lacked sufficient rationale, failed to describe functional limitations, and failed to consider the impact of the bilateral hearing loss and urinary frequency with pyuria rating. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The September 2010 VA audiology examiner opined that the bilateral hearing loss had significant occupational effects, including poor social interactions and hearing difficulty. The December 2015 VA hypertension examiner opined that the hypertension did not impact ability to work. The December 2015 VA male reproductive system examiner opined that the erectile dysfunction did not impact ability to work. The December 2015 VA eye examiner opined that the diabetic retinopathy did not impact ability to work. The December 2015 VA nephrology examiner opined that the diabetic nephropathy did not impact ability to work. The December 2015 VA DMII and diabetic peripheral neuropathy examiner opined that the functional impact included dropping items more easily and needing frequent breaks when walking due to pain and numbness in the feet. Although the Veteran has additional functional loss from other service-connected disabilities, the Board finds the functional loss attributable to the urinary frequency with pyuria disability to be preclusive of maintaining a substantially gainful occupation. Specifically, the frequency at which the Veteran would need to use the bathroom would likely exceed the amount of bathroom breaks allowed by a typical employer. Thus, the schedular TDIU is warranted since April 18, 2008. REASONS FOR REMAND 4. Service Connection for Sleep Apnea As discussed above, the Board requires medical clarification of the September 2010 VA opinion in light of publicly-available, general medical information suggesting an association between sleep apnea and DMII. Specifically, the Board requires further medical opinion regarding whether this possible association is applicable to the Veteran’s specific disability picture, such that his sleep apnea is at least as likely as not proximately due to or aggravated beyond natural progression by his service-connected DMII. 5. Service Connection for Skin Conditions Over the years, the Veteran has been treated for a variety of skin symptoms. See February 2008 Dallas VAMC record (surgical history of lesion removal in 2005); March 2010 private treatment record (right great toe onychomycosis); April 2012 Columbus VAMC record (blackheads, scattered seborrheic keratoses, large cyst on the left posterior shoulder, small clustered open comedones around the eyes, scattered waxy papules on the flanks and back, diagnoses of epidermal inclusion cyst, acne/favre, and seborrheic keratosis); January 2013 Statement (recurring blackheads since 2011). The Veteran contends that these conditions were caused by his herbicide agent exposure. See January 2013 Statement. Crucially, there are no competent etiological opinions associated with the claims file and the Veteran does not have the medical background necessary to competently render an etiological opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). There is no evidence currently associated with the claims file indicating manifestation to a compensable degree within a year after the last herbicide agent exposure, such that presumptive service connection may be considered; however, this does not preclude the opportunity to prevail on a direct basis. 38 C.F.R. §§ 3.307(6)(ii), 3.309(e); Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994). As there are no competent etiological opinions regarding direct service connection, the record lacks enough competent medical evidence to decide the claim. 38 U.S.C. § 5103A (d)(2) (West 2012); 38 C.F.R. § 3.159 (c)(4)(i) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Combee v. Brown, 34 F.3d 1039, 1043-33 (Fed. Cir. 1994); Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding whether the Veteran’s sleep apnea is at least as likely as not proximately due to or aggravated beyond natural progression by his service-connected DMII. 2. Obtain an etiological opinion regarding whether the Veteran’s skin conditions were at least as likely as not caused or aggravated beyond natural progression by his herbicide agent exposure. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel