Citation Nr: 18145051 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 15-05 346 DATE: October 26, 2018 ORDER The service connection claim for a lumbar spine disability is reopened. The service connection claim for sleep apnea is reopened. Service connection for coronary artery disease/ischemic heart disease (CAD/IHD) due to herbicide agent exposure is granted. REMANDED Entitlement to service connection for hypertension to include as secondary to herbicide agent exposure, CAD, and diabetes is remanded. Entitlement to an increased initial rating higher than 10 percent for left lower extremity diabetic peripheral neuropathy is remanded. Entitlement to an increased initial rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left ankle disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus 2 (diabetes) is remanded. FINDINGS OF FACT 1. An unappealed August 2005 rating decision denied service connection for a lumbar spine disability. Evidence received since the August 2005 denial, including treatment records and the January 2013 VA examination report, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. 2. An unappealed August 2010 rating decision denied service connection for sleep apnea. Evidence received since the August 2010 denial, including a private nexus statement and the January 2013 VA medical opinion, was not of record at that time, relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and raises a reasonable possibility of substantiating that claim. 3. The record establishes herbicide exposure during service near the Korean Demilitarized Zone. The September 2012 VA examination and VA treatment records clearly document a diagnosis of CAD/IHD. CONCLUSIONS OF LAW 1. New and material evidence has been received; the appeal for service connection for a lumbar spine disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been received; the appeal for service connection for sleep apnea may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for CAD/IHD as presumptively related to herbicide exposure in service have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to December 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and February 2013 rating decisions. In an October 2015 written statement, the Veteran withdrew the previous request for a Board hearing. The Board is in receipt of the September 2018 appellate brief from the Veteran’s new representative and has carefully reviewed it in adjudicating the Veteran’s case. 1. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability For the reasons outlined above, the Board finds the claim for service connection for a lumbar spine disability is reopened. 2. Whether new and material evidence has been received to reopen a claim for sleep apnea For the reasons outlined above, the Board finds the claim for service connection for sleep apnea is reopened. 3. Service connection for CAD as due to herbicide agent exposure For the reasons outlined above, service connection for CAD/IHD is warranted. REASONS FOR REMAND 5. Service connection for hypertension to include as due to herbicide agent exposure, and as secondary to service-connected CAD, and/or diabetes is remanded. A remand is required to obtain adequate nexus opinions on direct and secondary service connection. 6. Service connection for sleep apnea to include as secondary to diabetes is remanded. A remand is necessary to obtain an adequate nexus opinion. 7. An increased rating higher than 10 percent for left lower extremity diabetic peripheral neuropathy is remanded. A remand is required to afford the Veteran a contemporaneous VA examination. 8. An increased rating higher than 10 percent for right lower extremity diabetic peripheral neuropathy is remanded. A remand is required to afford the Veteran a contemporaneous VA examination. 9. Service connection for a lumbar spine disability to include as secondary to a service-connected left ankle disability is remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2014 to present. 2. Obtain any adequately identified private treatment records relevant to the issues on appeal not already associated with the claims file. 3. Send the Veteran a letter inviting submission of any additional medical evidence, especially helpful would be a statement from the Veteran’s medical provider describing IN DETAIL any links between the Veteran’s diabetes and hypertension, CAD and hypertension, diabetes and sleep apnea, and left ankle and back. (By law, for the Board to accept a medical opinion as legally adequate to decide a claim, the medical opinion must be supported by a thorough explanation (rationale) for the opinion provided (unfortunately, the checklist submitted by the Veteran’s medical provider K.M. in February 2012, does not meet this criterion)) 4. Schedule the Veteran for an examination with an appropriate examiner to determine the current severity of the Veteran’s service-connected left and right lower extremity neuropathy and the nature and cause of the Veteran’s hypertension, sleep apnea, and back disability. Instructions for the Examiner: The Board recognizes that the complex and intertwined nature of the medical questions involved require significant work on the part of the medical examiner. The Board regrets the need to request additional medical opinions on remand, however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid delays in adjudication. For the left and right lower extremity neuropathy The examiner should answer the following questions based on (1) a review of the claims file and (2) interview and (3) examination of the Veteran. The examiner should fully describe the disabilities and report all signs and symptoms necessary for evaluation under Diagnostic Code 8620/8520. The examiner MUST address all reported neurological symptoms and state whether they are manifestations of the service-connected neuropathy or otherwise to the Veteran’s service. For sleep apnea A remand is necessary because neither the February 2012 private positive nexus statement nor the January 2013 negative VA nexus statement is supported by an adequate rationale. On remand, the examiner should elicit from the Veteran a full report of sleep symptoms and their onset. The examiner should answer the following questions based on (1) a review of the claims file and (2) interview, and (3) examination of the Veteran. The examiner may wish to consider this article (https://www.uptodate.com/contents/overview-of-obstructive-sleep-apnea-in-adults?search=sleep%20apnea&source=search_result&selectedTitle=1~150&usage_type=default&display_rank=, which appears to indicate a correlation between diabetes and sleep apnea in some cases. a) Is it at least as likely as not (a 50 percent or better probability) that sleep apnea was incurred in or is otherwise related to the Veteran’s service? b) Is it at least as likely as not (a 50 percent or better probability) that sleep apnea was CAUSED by the Veteran’s service-connected diabetes? c) Is it at least as likely as not (a 50 percent or better probability) that sleep apnea was AGGRAVATED by the Veteran’s service-connected diabetes? (Aggravation means the disability increased in severity beyond its natural progression.) The Board draw’s the examiner and RO’s attention to the September 2018 appellate brief where the Veteran’s representative outlined pertinent evidence that hopefully will be helpful to the examiner. The examiner MUST address the Veteran’s assertion that his service-connected diabetes caused or aggravated obesity, which in turn caused or aggravated the Veteran’s sleep apnea. A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). For hypertension A remand is required to obtain an adequate opinion on service connection secondary to diabetes, a nexus opinion on newly-service connected CAD and hypertension, and a direct service connection nexus opinion, to include as due to established herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (determining that service connection may be established directly due to herbicide agent exposure for disease not subject to presumptive service connection). The examiner should answer the following questions based on (1) a review of the claims file and (2) interview, (3) examination of the Veteran. d) Is it at least as likely as not (a 50 percent or better probability) that hypertension was incurred in or within one year of separation, or is otherwise related to the Veteran’s service? e) Is it at least as likely as not (a 50 percent or better probability) that hypertension was CAUSED by the Veteran’s service-connected diabetes or service-connected CAD? Here the Board reminds the examiner that a statement that diabetes did not cause hypertension based ONLY on the fact that hypertension was diagnosed before diabetes is not legally adequate. See Frost v. Shulkin, 29 Vet. App. 131 (2017). The examiner must address whether the evidence shows that symptoms of diabetes preceded hypertension: in other words, there is no requirement that the primary disease be formally diagnosed to cause the claimed secondary disease, for the purposes of establishing secondary service connection. f) Is it at least as likely as not (a 50 percent or better probability) that hypertension was AGGRAVATED by the Veteran’s service-connected diabetes or service-connected CAD? (Aggravation means the disability increased in severity beyond its natural progression.) A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). For the back The Veteran is claiming service connection as secondary to a left ankle disability, specifically that an abnormal gait related to the ankle disability caused or aggravated his established back disability. In the September 2018 appellate brief, he also claims service connection as secondary to herbicide agent exposure. A remand is necessary for a nexus opinion on direct service connection and for a more adequate nexus opinion on secondary service connection. The Board notes that the January 2013 VA examiner’s nexus statement on aggravation is unfortunately not adequate because it is not accompanied by a detailed explanation (nexus). On remand, the examiner MUST discuss the assertions outlined in the Veteran’s September 2018 appellate brief. Specifically, the Veteran asserts that he developed significant back pain in the 1990s when he was in his 40s and beliefs that this would be unusual just due to aging. The examiner should answer the following questions based on (1) a review of the claims file and (2) interview, and (3) examination of the Veteran. g) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s back disability was incurred in or within one year of separation, or is otherwise related to the Veteran’s service? h) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s back disability was CAUSED by the Veteran’s service-connected left ankle disability, to include by an abnormal gait associated with the ankle disability OR by exposure to herbicide agents? i) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s back disability was AGGRAVATED by the Veteran’s service-connected ankle disability, to include by the abnormal gait associated with the ankle disability OR by exposure to herbicide agent? (Aggravation means the disability increased in severity beyond its natural progression.) A detailed explanation (rationale) is requested for all opinions provided and is greatly appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Specifically, the Board cannot legally rely SOLELY on statements such as, “no medical evidence supports this,” or “the Veteran’s service records are silent as to X.” If the requested opinion cannot be provided without resort to speculation, the examiner should state this AND must explain WHY an opinion cannot be provided without resort to speculation (including whether an opinion is beyond what any medical practitioner might be able to provide, based on the evidence of record and current medical knowledge). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel