Citation Nr: 18144733 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 18-39 405 DATE: October 25, 2018 ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to sleep apnea. 2. Entitlement to service connection for residuals of a stroke, also claimed as memory loss, to include as secondary to sleep apnea. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to service connection for hypertension, to include as secondary to sleep apnea is denied. Entitlement to service connection for residuals of a stroke, also claimed as memory loss, to include as secondary to sleep apnea is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Hypertension was not manifest in service or within one year of separation, and is not otherwise attributable to service. 2. Hypertension is not caused or aggravated by service-connected sleep apnea. 3. Residuals of a stroke, claimed as memory loss, were not manifest in service. Residuals of a stroke, claimed as memory loss, are not otherwise attributable to service. 4. Residuals of a stroke, claimed as memory loss, are not caused or aggravated by service-connected sleep apnea. 5. The Veteran filed his Veterans Application for Increased Compensation Based on Unemployability on November 16, 2017. 6. The Veteran is currently at a combined 100 percent rating effective November 16, 2017. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, and cardiovascular-renal disease may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Hypertension is not proximately due to, the result of, or aggravated by service connected disease or injury. 38 C.F.R. § 3.310 (2017). 3. Residuals of a stroke, claimed as memory loss, were not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. Residuals of a stroke, claimed as memory loss, are not proximately due to, the result of, or aggravated by service connected disease or injury. 38 C.F.R. § 3.310 (2017). 5. The Veteran’s claim for a total disability rating based on individual unemployability is moot as a matter of law as he is already in receipt of a total rating. 38 U.S.C. §§ 7104, 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1959 to September 1962. This matter is before the Board of Veterans Appeals (Board) on appeal from July 2017 and January 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A July 2018 rating decision granted service connection for bilateral hearing loss disability and tinnitus. In a letter dated September 19, 2018, the Veteran through his attorney withdrew his hearing request. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). 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). Service Connection To establish service connection a Veteran must generally 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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 evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for hypertension, to include as secondary to sleep apnea. 2. Entitlement to service connection for residuals of a stroke, also claimed as memory loss, to include as secondary to sleep apnea. By way of background, the Service Treatment Records (STRs) include a December 3, 1960 Report of Medical Examination. It disclosed clinically normal evaluations of the nose, sinuses, mouth and throat, lungs and chest, heart, neurologic system, and vascular system. An STR from March 13, 1961 shows that the Veteran was exempt from an annual physical examination by reason of the previously reported examination from December 3, 1960. The STRs also include a July 23, 1961 Chronical Record of Medical Care that shows a full physical evaluation. It shows that the Veteran was admitted with low back pain. Herniation of Nucleus Pulposis was identified. The examination shows that the Veteran’s general health was “good, no weight loss.” The evaluation of the heart shows, “RSR no murmurs A2 greater than P2 tones normal.” The evaluation of the lungs shows “Clear A to P.” The neurological examination shows, “Position sensory, vibratory, intact” with no pathological reflexes, cranial nerves intact, and no cerebellar signs. An STR from March 13, 1962 shows that the Veteran was exempt from his annual physical examination. Additional STRs are substantially the same. January 1962 STRs show requests for limited duty due to recurrence of leg pain. Years later, a December 22, 2010 VA treatment record shows that the Veteran presented to a VA facility to establish care. He had a known history of rhinitis with reactive airway disease, was followed by pulmonary treatment providers, and was on nasal spray. He reported a history of hypertension. The active problems list includes chronic airway obstruction, not elsewhere classified, congestive heart failure, and hypertension. Next, the Veteran filed his initial application for compensation, dated January 3, 2017. A January 2017 private medical opinion from Dr. C. F. shows in part, “Sleep apnea, of course, could be a contributing factor for mini strokes, hypertension, and memory loss all of which he suffers from.” A January 2017 private medical opinion from B. R., respiratory therapy supervisor, shows that that the Veteran was referred to him in 2011 for treatment for sleep apnea. The Veteran would complain that the positive pressure device caused him to have chest congestion. Additional discussion in the private medical opinion is substantially the same. The Veteran also submitted a lay statement from his spouse. It shows that sleep apnea was identified in 2003. It also shows that the Veteran suffered mini strokes on two occasions. Then, in August 2017, the Veteran was afforded VA examinations with medical opinions. First, related to sleep apnea, the VA examiner found that it was first identified following a sleep study in 2003. The VA examiner noted the Veteran’s lay reports of gasping dating back to service in 1959. Second, the Veteran was afforded a VA hypertension examination. By way of medical history, the VA examiner wrote, “Dating to the early 2000’s while working in Mississippi, developed symptoms eventually diagnosed as a stroke secondary to very elevated blood pressure.” There is a date of diagnosis of 2000 and 2015 for vascular disease. Following this incident, the Veteran was stable until 2015. During one such episode, he became flush and warm while performing work around his home. The VA examiner noted that there is a brain MRI from 2015 that showed microvascular disease with central atrophy and mild peripheral atrophy. It was otherwise unremarkable. Third, a contemporaneous VA hypertension examination showed that sometime before 2000 the Veteran was diagnosed with hypertension. It was currently controlled by three medications. Next, the VA examiner rendered several August 2017 medical opinions. Those relevant to the issues currently on appeal have been considered. First, regarding hypertension, the VA examiner answered “No” when asked “Is it at least as likely as not that the veteran’s n/SC hypertension is related to his n/SC sleep apnea?” The VA examiner explained that hypertension pre-dated the formal diagnosis of sleep apnea. The Board observes that having responded to a generalized question regarding the potential relationship between the two disabilities, the medical opinion rendered encompasses all possible theories of entitlement for secondary service connection. In other words, whether under a theory of hypertension being proximately due to, the result of, or aggravated by sleep apnea, the VA examiner’s answer of “No” implicitly addressed all of these theories of entitlement. Second, regarding residuals of a stroke, the VA examiner answered “No” when asked “Is it at least as likely as not that the veterans n/SC mini-stroke (CVA) is secondary to his n/SC sleep apnea?” The VA examiner explained that the first cardiovascular accident (CVA) predated the formal diagnosis of sleep apnea, and was “more likely secondary to the significant blood pressure elevation and/or effects of type II diabetes.” Similar to above, the Board observes that the medical opinion rendered encompasses all possible theories of entitlement for secondary service connection. In other words, whether under a theory of residuals of a stroke being proximately due to, the result of, or aggravated by sleep apnea, the VA examiner’s answer of “No” implicitly addressed all of these possible theories of entitlement. The Board observes that to date, neither the Veteran nor his attorney have challenged the adequacy of the medical opinions in this regard. Also in August 2017, VA received the Veteran’s “[C.] [R.] [C.] Health Issues,” which included lay argument, lay history, and accompanying medical treatment records. Regarding hypertension, the Veteran asserted, “I do not remember when I was diagnosed with hypertension. It was in the 1970’s by Dr. [J.] [D.]” Regarding mini-strokes, the Veteran reported episodes in 2000 and 2015. Additional treatment records are substantially the same. The Veteran also submitted several private medical opinions. An October 2017 private medical opinion from Dr. C. F. shows that the Veteran was first diagnosed with sleep apnea by way of a 2003 sleep study. It shows that he has a history of hypertension, mini strokes, and memory loss, which are secondary conditions related to sleep apnea. Additional VA and private treatment records are substantially the same, and show ongoing impressions of and treatment related to hypertension and sleep apnea. The Veteran through his attorney submitted a July 2018 VA Form 9. It contains no additional argument or contentions. Then, in October 2018, the Veteran submitted two new private medical opinions from Dr. C. F. The first, dated August 7, 2018, shows in relevant part, “It is at least as likely as not that Mr. [C.] Sleep Apnea (sic) either caused or aggravated his hypertension and led to his stroke.” The second is undated, but received on October 11, 2018 via facsimile. Dr. C. F. wrote, “Sleep apnea causes and aggravates high blood pressure as patient’s obstruct (sic). Hypertension is a leading cause of peripheral vascular disease and coronary heart disease. Both contribute directly to stroke.” The Veteran through his representative contemporaneously waived RO review of these private medical opinions. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report gasping for breath, and experiencing symptoms later identified as related to a mini stroke. The Veteran is competent to relate what he has been told by a professional. He is competent to report when he began receiving treatment for hypertension, and when hypertension and mini strokes were first identified. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The most probative evidence are the contemporaneous treatment records, including the STRs, and the opinions of the August 2017 VA examiner. First, the STRs are clinically normal for the nose, sinuses, mouth and throat, lungs and chest, heart, neurologic system, and vascular system. Several decades later, private and VA treatment records show that several diseases were identified. In particular, sleep apnea was identified in 2003. A mini stroke occurred in 2000 and again in 2015. Hypertension was identified in the early 2000s by way of lay history, and in December 2010 by VA. The Board assigns significant probative weight to the contemporaneous treatment records. Second, the Board also assigns significant probative weight to the detailed opinion of the August 2017 VA examiner. The VA examiner reviewed the entire claims file, and provide detailed reasons and bases. First, regarding hypertension, the VA examiner opined that hypertension was less than likely secondary to the Veteran’s sleep apnea, as hypertension pre-dated the diagnosis of sleep apnea. Consistently, in the Veteran’s “[C.] [R.] [C.] Health Issues,” statement regarding hypertension, the Veteran asserts, “I do not remember when I was diagnosed with hypertension. It was in the 1970’s by Dr. [J.] [D.]” With respect to residuals of mini-strokes, the Veteran reported episodes in 2000 and 2015. Second, regarding a stroke, the VA examiner opined that the first CVA predated formal diagnosis of sleep apnea and was more likely secondary to the significant blood pressure elevation and/or effects of type II diabetes. The Board assigns substantial probative weight to these medical opinions. Regarding direct or presumptive service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entities in service. They were not manifest in service and are not attributable to service. There is no probative evidence to the contrary. In addition, the Board finds that while competent to report what he has been told by his physician and to report experiencing mini strokes, the Veteran’s own lay opinion regarding identifying a potential chronic disease entity pales in probative weight when compared to the objective medical evidence of record. To the extent that there are private medical opinions to the contrary, they do not show the entire claims file was reviewed, and are therefore afforded diminished probative weight. Specifically, the August 7, 2018 private medical opinion does not contain substantial reasons and bases, and does not show that it was based upon a review of the claims file. Therefore, we have afforded it diminished probative weight. In addition, the private medical opinions are not entirely inconsistent with the finding of a remote onset of the disease entities several decades after discharge. Consequently, we find that service connection on a direct and presumptive basis for hypertension, and on a direct basis residuals for residuals of a stroke, is not warranted. Here, it appears the Veteran’s central theory for entitlement to service connection for hypertension and residuals of mini strokes is one of secondary service connection. More specifically, he contends that hypertension and mini strokes were and are secondary to his service-connected sleep apnea with asthma, claimed as a pulmonary condition. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Indeed, service connection has been established for sleep apnea. The Board has considered the evidence of record, and finds that hypertension and residuals of mini strokes are not related to service, and are less likely than not proximately due, the result of, or aggravated any service connected disability. As a preliminary consideration, with respect to the August 2017 VA medical opinions, the Board finds that they are based upon sound reasons and bases. The medical opinions included a consideration of the date of onset of the disease entities, which has been substantially consistent with the Veteran’s own lay reporting and evidence he has submitted through counsel. Indeed, VA’s duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl, 21 Vet. App. at 123. Consequently, we find the August 2017 VA medical opinions to be adequate for the purposes of rendering this decision. In addition, we note that neither the Veteran nor his attorney have alleged any deficiencies in developing this claim in this regard. The Board has assigned significant probative weight to the contemporaneous medical records, including the STRs, and the findings of the August 2017 VA examiner. The August 2017 VA examiner reviewed the STRs, VA treatment records, August 2017 VA examinations, sleep study findings, and the Veteran’s lay history. The VA examiner provided detailed reasons and bases. The VA examiner rendered negative nexus opinions. As discussed above, having responded to the generalized question regarding the potential relationship between the two disabilities, the negative nexus opinions implicitly encompassed all possible theories of entitlement for secondary service connection. We have found these to be the most probative evidence of record. To the extent that there are private medical opinions in support of the Veteran’s claim, they do not show that the claims file was reviewed. In addition, the opinions expressed are not determinative. For example, the January 2017 private medical opinion from Dr. C. F. shows in part, “Sleep apnea, of course, could be a contributing factor for mini strokes, hypertension, and memory loss all of which he suffers from.” The word “could” is used, rather than the standard of “at least as likely as not.” Therefore, this private medical opinion is speculative in nature and assigned less probative weight. The undated medical opinion from Dr. C. F received via facsimile on October 11, 2018 only offers a generic discussion of sleep apnea and hypertension. It does not discuss the Veteran’s particular circumstances, and provides no reasons and bases. Consequently, it is entitled to diminished probative weight. In short, the most probative evidence is the clinically normal STRs upon discharge and August 2017 VA medical opinions. Hypertension and residuals of a stroke, claimed as memory loss, resulting in disability was not noted or manifest during service. In addition, the Veteran’s own lay opinion pales in probative weight (regarding identifying a potential chronic disease entity in service) when compared to the objective medical evidence of record. Hypertension and residuals of a stroke, claimed as memory loss, is also not related to service, and is less likely than not proximately due to, the result of, or aggravated by any service connected disability. The evidence establishes a remote onset of hypertension and mini strokes when compared with the most probative evidence of record. We note that for hypertension, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). The Veteran has been afforded several VA examinations to substantiate his claims. Consequently, service connection for hypertension and residuals of stroke, claimed as memory loss, is not warranted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). The Board incorporates its discussion from the sections above by reference. As a threshold matter, we note that the Veteran currently has a combined rating of 90 percent from January 3, 2017, and is in receipt of a total rating effective November 16, 2017. Sleep apnea was rated at 60 percent from November 16, 2017, which contributed to the Veteran’s total rating from this date. The Board observes that also on November 16, 2017, VA received the Veteran’s Application for Increased Compensation Based on Unemployability. The Board further observes that the Veteran was sent a subsequent development letter dated December 18, 2017. It requested considerable employment history details, including records from both real estate companies well as [C’s]. The Veteran submitted a December 19, 2017 statement with respect to [C’s]. It shows that he works 1-2 hours or less per week, but also shows a reported $0.00 gross and net earnings from that employment over the past 12 months. There are no detailed records from the real estate businesses, including possible leave and earnings statements. We note the need for possible clarification regarding the Veteran’s employment history. Here, however, the Veteran is already in receipt of a total schedular rating from the date of his application, November 16, 2017. As questions of a total rating are rendered moot, with no remaining questions of law or fact to decide. See 38 U.S.C. §§ 5110, 7104; Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). The Board emphasizes that the Veteran is already in receipt of the service connection for several disabilities, including bilateral hearing loss disability and tinnitus, by way of the recent July 2018 rating decision. Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). In this case, the Veteran nor his attorney has not specifically alleged any other claims or theories of entitlement. Thus, the claim must be denied as a matter of law. Put differently, the Veteran is now already in receipt of the full benefit sought. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page.) In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel