Citation Nr: 18148621 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-25 008 DATE: November 8, 2018 ORDER Entitlement to service connection for hypertension (claimed as high blood pressure) is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for acid reflux / gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right shin disability is remanded. Entitlement to service connection for a left shin disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his hypertension is shown to be proximately due to his service-connected psychiatric disorder / posttraumatic stress disorder (PTSD). 2. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea is shown to be proximately due to his service-connected psychiatric disorder / posttraumatic stress disorder (PTSD). 3. Resolving reasonable doubt in the Veteran’s favor, his erectile dysfunction is shown to be proximately due to his service-connected psychiatric disorder / posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to January 1993. These matters have come to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) for Atlanta, Georgia. Service Connection 1. Entitlement to service connection for hypertension (claimed as high blood pressure) is granted. 2. Entitlement to service connection for sleep apnea is granted. 3. Entitlement to service connection for erectile dysfunction is granted. The Veteran’s service treatment records (STRs) are missing and unavailable for review. A December 2012 “Formal finding on the Unavailability of Service Medical Treatment Records” documents the unavailability of the Veteran’s STRs, and certifies that all procedures to obtain the STRs were correctly followed, all efforts to obtain such records had been exhausted, and further attempts would be futile. In such circumstances, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Notably, the cited case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran seeks to establish entitlement to service connection for his diagnosed disabilities of hypertension, sleep apnea, and erectile dysfunction. Medical evidence of record, including VA examination reports dated in January 2016, confirm that the Veteran has been diagnosed with each of these claimed disabilities. The January 2016 VA examination report shows that the Veteran reported that he was diagnosed with hypertension in 1993, the year of his separation from military service. Unfortunately, the unavailability of the Veteran’s STRs prevents the Board or any medical examiner from reviewing the Veteran’s blood pressure data from his period of active duty service. An April 2013 statement from the Veteran’s attorney indicates that the Veteran “believes his sleep apnea was present right after his active duty,” noting that the Veteran recalled have difficulty staying awake (suggested to be due to sleep deprivation) and that people who witnessed him sleeping commented about the apparent abnormality of his breathing. Unfortunately, the unavailability of the Veteran’s STRs prevents the Board or any medical examiner from reviewing any potentially pertinent suggestions of the presence of sleep apnea that may have been documented in medical records near the conclusion of the Veteran’s active duty service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the probative evidence of record sufficiently indicates his hypertension, sleep apnea, and erectile dysfunction can be medically proximately attributed to his service-connected psychiatric disorder diagnosed as PTSD. Service connection may be granted for a disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to or the result of a service-connected disability. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Further, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A January 2016 VA examination report includes the authoring expert’s medical opinion that the Veteran’s hypertension, sleep apnea, and erectile dysfunction were unlikely caused by or the result of his service-connected psychiatric disorder. The January 2016 VA medical opinion does not address the pertinent question of whether the Veteran’s hypertension, sleep apnea, and/or erectile dysfunction may have been aggravated by his service-connected psychiatric disorder. The January 2016 VA medical opinion simply discusses that “DSM IV or V does not show PTSD or other mental health condition(s) causing physical medical conditions,” and discusses that “[t]here was a study done which showed a loose association between PTSD and health problems …. However, ‘further research is indicated….’ ‘Existing research has not been able to determine conclusively that PTSD causes poor health.’” In August 2016, the Veteran’s private treating physician, Dr. Hood, submitted a medical opinion in support of the Veteran’s claims. The Board notes that the Veteran has reported that Dr. Hood has been his treating physician since at least as early as 1988, including as indicated on correspondence dated in February 2012. The Board also notes that the Veteran has submitted treatment reports from his consultations with Dr. Hood. The Board finds that the evidentiary record reasonably establishes that Dr. Hood is highly familiar with the Veteran’s particular medical history. Dr. Hood’s August 2016 medical opinion specifies the diagnoses of “Hypertension, Erectile Dysfunction, [and] Sleep Apnea” and explains: “One cannot say exactly how long this condition existed prior to the date of diagnosis or definitively state its cause. However, it is as likely as not that [the Veteran]’s service connected PTSD contributes to or exacerbates his Sleep Apnea, Hypertension and ED conditions.” The Board finds that Dr. Hood’s competent expert medical opinion is probative evidence in this case, including with attention to the high degree of medical familiarity reasonably indicated by his lengthy tenure as the Veteran’s treating physician. The Board notes that the January 2016 VA medical opinion does not address aggravation, leaving Dr. Hood’s supportive opinion essentially uncontradicted by any contrary evidence of record with regard to its support of the claims of entitlement to service connection on the basis of aggravation. However, review of the claims-file in this case presents no indication to the Board that additional development in this case is reasonably likely to yield medical evidence meaningfully distinguishing the proportion of each disability attributable to service-connected aggravation versus the proportion of each disability attributable to non-service-connected etiology. The Board notes that Dr. Hood’s medical opinion does not provide estimations of such proportions; its commentary concerning the impossibility of ‘definitive’ statements regarding causation suggest that meaningful partitions of causation and aggravating factors are not achievable in this case. Dr. Hood’s language indicating that “service connected PTSD contributes to or exacerbates” the claimed disabilities suggests that Dr. Hood considers PTSD’s role to be as either a contributing cause or aggravating factor. The January 2016 VA medical opinion’s contrary opinion cites a study that showed an “association between PTSD and health problems,” albeit “loose” and without a “conclusive determination.” With significant consideration of the supportive medical opinion of the Veteran’s long-term treating physician, and resolving reasonable doubt in the Veteran’s favor, the Board finds that these claims may be resolved without delay for further development of the medical evidence with a full grant of service connection for hypertension, sleep apnea, and erectile dysfunction. REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder is remanded. 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for acid reflux / gastroesophageal reflux disease (GERD) is remanded. 4. Entitlement to service connection for dizziness is remanded. 5. Entitlement to service connection for a right knee disability is remanded. 6. Entitlement to service connection for a left knee disability is remanded. 7. Entitlement to service connection for a right shin disability is remanded. 8. Entitlement to service connection for a left shin disability is remanded. 9. Entitlement to service connection for a right ankle disability is remanded. 10. Entitlement to service connection for a left ankle disability is remanded. 11. Entitlement to service connection for a right elbow disability is remanded. 12. Entitlement to service connection for a left elbow disability is remanded. 13. Entitlement to service connection for a back disability is remanded. The Board again notes that the Veteran’s STRs are missing and unavailable for review. A December 2012 “Formal finding on the Unavailability of Service Medical Treatment Records” documents the unavailability of the Veteran’s STRs, and certifies that all procedures to obtain the STRs were correctly followed, all efforts to obtain such records had been exhausted, and further attempts would be futile. In such circumstances, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Notably, the cited case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Review of the record shows that the Veteran’s STRs were requested via a PIES request to Address Code M04 in June 2012. A response received in December 2012 indicated: “The personnel record was retired to Code 13. The health record was not.” In December 2012, the RO issued a “Formal finding on the Unavailability of Service Medical Treatment Records.” Notably, however, the Veteran’s testimony and other evidence in this case indicate that he received pertinent in-service treatment through hospitalization. The Veteran’s October 2012 written statement explained that he suffered a “knee and ankle injury” in 1988 that was treated “at the post medical center,” and that “[l]ater that week I had an adverse reaction to the medications … swelling, hives, difficulty breathing, etc. My drill sergeant had to rush me back to the hospital …. They put me on IVs….” The Veteran’s private medical records from Dr. Hood, received in February 2012, include a January 2010 report documenting that the Veteran reported the 1988 incident involving the “allergic reaction” as his only instance of “Hospitalization.” Inpatient hospitalization records may be stored separately from STRs and require a different type of PIES request. A request to the National Personnel Record Center (NPRC) for the inpatient hospitalization records in this case must be made under PIES Address Code C01-V. It is notable that the response to the June 2012 request contains no indication of an attempt to search for the records under Code C01 or Code C01-V (the latter code is appropriate for service hospitalization records sought for an ‘e-folder,’ such as the claims-file in this case). In light of the fact that the Veteran’s STRs are otherwise missing, the Board finds that it may be significantly helpful to the Veteran’s claim to obtain the records of the cited hospitalization from the time of one of his described pertinent in-service injuries. VA should make the appropriate attempts to obtain the identified relevant service inpatient hospitalization records. In light of the fact that an attempt to obtain the Veteran’s in-service hospitalization records will occur as part of the processing of this remand, the Board must note the fact that the in-service hospitalization records identified by the Veteran are described as involving an incident in which he also developed hives upon his skin. The Veteran’s claim of entitlement to service connection for a skin disorder features his description of a disability in which he occasionally develops skin rashes. The Board observes that the Veteran reported in October 2012 that the in-service hives may have been attributed to an allergy to aspirin, but an April 2012 VA treatment record indicates uncertainty regarding the cause of the in-service skin problem because medical professionals had now determined that the Veteran was not allergic to aspirin. In any event, the sought 1988 in-service hospitalization records pertinent to an in-service significant skin reaction may be pertinent to the Veteran’s current claim of entitlement to service connection for a skin disorder. Accordingly, the Board finds that final appellate review of the claim of entitlement to service connection for a skin disorder must be deferred until the evidentiary record is determined to be complete. Next, the Board finds that it cannot make a fully-informed decision on the issues of entitlement to service connection for right and left knee disabilities, right and left shin disabilities, right and left ankle disabilities, right and left elbow disabilities, and a back disability, because no VA examiner has opined upon the complete set of pertinent questions raised in this appeal. Medical opinions are needed concerning whether the Veteran’s claimed disabilities are etiologically linked to events or injuries during his military service. The RO afforded the Veteran VA examinations with medical opinions in January 2016 that included opinions addressing whether the Veteran’s bilateral knee, left ankle, bilateral elbow, and back disabilities are attributable to known diagnoses or may be associated with undiagnosed illness or otherwise associated with Gulf War exposures. The January 2016 VA examination reports do not address whether the Veteran’s right and left knee disabilities, right and left shin disabilities, right and left ankle disabilities, right and left elbow disabilities, and a back disability are at least as likely as not attributable to any injuries or events during his active duty service. In brief, the Veteran has credibly described suffering injuries and strains to these joints (and shins) consistent with the nature of his duties as a cannon crewmember who served in combat. Correspondence received by VA in October 2012 describes the Veteran’s recollection of receiving medical treatment in service for “several injuries, including but not limited to knee, ankle, and back injuries,” that the Veteran believes were documented in his missing STRs. Statements received by VA in April 2013 and March 2015 describe the Veteran’s recollections of “jumping in and out (or off of) tanks, and carrying large rounds of ammunition,” as well as “participat[ing] in maneuvers that involved carrying heavy rucksacks,” riding “in vehicles such as the 155 Howitzer, ammo track vehicles, deuce 1/2 and 1/4 trucks, that were rough to ride in and in Humvees as well … the shocks were of little value,” in addition to other strenuous activities consistent with the nature of his duties. In June 2017, one of the Veteran’s fellow servicemen submitted a witness statement describing: in 1990, while unloading heavy equipment from on top of the gun [the Veteran] lost his balance and fell. He tried to get up and winced in pain after trying to put weight on his left leg. [The Veteran] was given a ride to medical because he was unable to walk there on his own. When I saw [the Veteran] the next day, he had what appeared to be a boot brace of some kind on his left leg and crutches. He told me he had a fractured bone in his left ankle and he showed me his left knee which was swollen. Additionally, the Board notes that the Veteran has already established entitlement to service connection for PTSD due to experiences associated with accepted combat experiences during active duty service, as discussed in an April 2014 RO rating decision. Furthermore, the sought in-service hospitalization records (discussed above) may provide further pertinent information regarding at least some of the Veteran’s described in-service injuries. The Board finds that informed appellate review of these claims requires a remand to obtain medical opinions addressing whether the Veteran suffers from any disability of the claimed joints (and shins) that is at least as likely as not etiologically linked to injuries/strains and events associated with his duties during active service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board additionally notes that the January 2016 VA examination reports do not address whether the Veteran’s claimed right ankle disability or bilateral shin disabilities are attributable to known medical diagnoses or may be etiologically linked to Gulf War exposures. During the forthcoming new VA examination with medical opinions, the VA examiner shall have the opportunity to address these aspects of the Veteran’s claims as well. With regard to the claim of entitlement to service connection for headaches, the Board notes that the Veteran’s June 2011 statements raising his service-connection claims included the following assertion: “... I feel like I have sleep apnea …. I use a mouth guard at night to help with my sleep. If I do not use this, I get extremely bad headaches.” The Board finds that the Veteran’s statement reasonably raises a theory of entitlement to service connection for headaches as secondary to (caused or aggravated by) his sleep apnea. Now that the Veteran’s sleep apnea has been found to be a service-connected disability, the Board finds that the Veteran’s testimony suggesting that he experiences “extremely bad headaches” when he fails to treat his sleep apnea reasonably raises the possibility of an etiological link between the service-connected sleep apnea and the claimed headache disability. The Board finds that a remand for a VA examination with medical opinion is warranted on the question of whether an etiological link (through causation or aggravation) is at least as likely as not. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With regard to the claim of entitlement to service connection for acid reflux, the Board notes that the Veteran’s June 2011 statement raised the claim as “possibly secondary to a mental condition / PTSD.” The Board observes that a July 2012 private psychiatric assessment discusses the Veteran’s diagnosed alcohol dependence in connection with his service-connected PTSD diagnosis, including discussion that the Veteran “describes self as having many angry outbursts & increased drinking since returning from war.” This is notable because the January 2016 VA examination report addressing the acid reflux / GERD claim discusses that the Veteran “has noticed the condition [reflux] was worse when he was drinking,” and it “improved some” when he stopped drinking. The Board finds that the record reasonably indicates that the Veteran’s acid reflux / GERD may be caused or aggravated by his service-connected PTSD. The January 2016 VA examination report with medical opinion concerning the acid reflux / GERD claim only address the theory of entitlement to service connection associated with “environmental hazards of Southwest Asia” or “gulf exposures.” The January 2016 VA examination report with medical opinion does not address the question of whether the Veteran’s acid reflux / GERD is at least as likely as not caused or aggravated by the Veteran’s service-connected psychiatric disorder featuring PTSD. The Board finds that a remand for a VA examination with medical opinion is warranted on the question of whether an etiological link (through causation or aggravation) is at least as likely as not. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With regard to the claim of entitlement to service connection for dizziness, the Board notes that the Veteran’s June 2011 statement claimed the disability as “dizziness secondary to high blood pressure.” Throughout the RO adjudication of this appeal, the Veteran’s diagnosed hypertension was not a service-connected disability. However, the Board has determined in this decision that service connection is warranted for hypertension on the basis of the evidence of record. Now that hypertension is a service-connected disability, the Agency of Original Jurisdiction (AOJ) must have the opportunity to consider the claim of entitlement to service connection for dizziness with attention to the Veteran’s theory that the dizziness is secondary to (caused or aggravated by) his newly service-connected hypertension. Additionally, in light of the Veteran’s contentions, the ‘dizziness’ claim is arguably intertwined with the headaches issue being remanded for additional development at this time. The Veteran’s November 2011 statement described: “I get very dizzy at times, most often times, it is after headaches.” During the readjudication of the claim, the AOJ shall have the opportunity to obtain a new medical opinion addressing whether the Veteran’s claimed dizziness is a manifestation of a medical pathology caused or aggravated by his newly service-connected hypertension (or any headache pathology if service connection is established for one). The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. Send a request via PIES code C01-V to request any clinical treatment records pertaining to the Veteran’s reported in-service treatment in 1988 for a left lower extremity injury and proximate possible allergic reaction to medication involving skin hives and shortness of breath. If additional detail regarding timing or location is needed, contact the Veteran to request the needed information. Please document any responses in the record. 3. After the record is determined to be complete, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed right and left knee disabilities, right and left shin disabilities, right and left ankle disabilities, right and left elbow disabilities, and back disability. The examiner must opine as to: (a.) whether it is at least as likely as not that any of these claimed disabilities are at least as likely as not etiologically related to an in-service injury, event, or disease, including with consideration of the Veteran’s credible description of in-service joint injuries, strains, and stress consistent with the duties of his military service as a cannon crewmember with combat experience. (b.) The examiner should also indicate whether it is at least as likely as not that any current arthritis diagnosis in a pertinent joint (1) began during service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) Additionally, the examiner should explain/clarify for the record the nature and etiology of the Veteran’s claimed disabilities of the right ankle and the bilateral shins, including whether the claimed disabilities are attributable to known medical diagnoses or may represent manifestations of undiagnosed illness or chronic multi-symptom illness linked to environmental exposures in Southwest Asia during the Persian Gulf War. 4. After the record is determined to be complete, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed headache disability. The examiner must opine as to whether it is at least as likely as not that the Veteran’s claimed headache disability (1) is proximately due to his service-connected sleep apnea, or (2) has been aggravated beyond its natural progression by his service-connected sleep apnea. 5. After the record is determined to be complete, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed acid reflux / GERD. The examiner must opine as to whether it is at least as likely as not that the Veteran’s acid reflux / GERD (1) is proximately due to his service-connected psychiatric disorder / PTSD, or (2) has been aggravated beyond its natural progression by his service-connected psychiatric disorder / PTSD, including the use of medications prescribed for treatment of service-connected psychiatric disorder. 6. After the record is determined to be complete, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed disability manifested by dizziness. The examiner must opine as to whether it is at least as likely as not that the Veteran’s dizziness (1) is proximately due to his service-connected hypertension, or (2) has been aggravated beyond its natural progression by his service-connected hypertension, including the use of medications prescribed for treatment of service-connected hypertension. (If the Veteran’s claimed headache disability has been determined to be a service-connected disability, then a similar opinion should be provided with regard to whether the Veteran’s claimed   dizziness is a disability proximately due to or aggravated beyond its natural progression by the headache pathology.) M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel