Citation Nr: 18150840 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-15 653 DATE: November 15, 2018 REMANDED Entitlement service connection for obstructive sleep apnea as due to service-connected somatic symptom disorder is remanded. Entitlement service connection for a heart condition, to include cardiomyopathy, congestive heart failure (CHF), and left bundle branch block, as due to service-connected somatic symptom disorder is remanded. Entitlement service connection for a neurogenic bladder as due to service-connected somatic symptom disorder is remanded. Entitlement service connection for sexual dysfunction, to include erectile dysfunction and loss of libido, as due to service-connected somatic symptom disorder is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU), prior to and from August 27, 2015, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from July 1984 to April 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2014 and February 2014 rating decisions of the Department of Veterans Affairs. 1. Entitlement service connection for obstructive sleep apnea as due to service-connected somatic symptom disorder is remanded. This issue must be remanded for a new medical opinion because the February 2016 medical opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion will be considered adequate when it is based upon consideration of the Veteran’s prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board’s “evaluation of the claimed disability will be an informed one.”) (quotation in original). The Veteran has a current diagnosis of obstructive sleep apnea. The Veteran has not put forth any arguments stating that his sleep apnea began in service or is due to service, and his service treatment records are silent for any signs, symptoms, complaints or diagnoses of a sleep disorder. While the Veteran did submit an undated letter from, Joan Epstein, a licensed clinical social worker (LCSW), stating that the Veteran has multiple physical concerns that “may” be related to exposure to chemicals in service, the letter does not sufficiently indicate that the Veteran’s sleep apnea may be associated with his service. See Epstein Letter (received Aug. 8, 2013). The letter is undated, it is nonspecific as to the conditions or chemicals, and it provides no basis for the opinion. Therefore, the Board finds that service connection for sleep apnea on a direct-incurrence basis has not been reasonably raised by the Veteran or the record. See Robinson v. Mansfield, 21 Vet. App. 545, 552-54 (2008) (holding that the Board did not err in failing to discuss an issue when it was not reasonably raised by the appellant or the record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). However, the Veteran asserted in his notice of disagreement (NOD) that his obstructive sleep apnea is due to his service-connected somatic symptom disorder. NOD (Jan. 16, 2015) (arguing that the Veteran’s obstructive sleep apnea manifested concurrently with his now service-connected somatic symptom disorder). At the time the Veteran submitted his NOD, he was diagnosed with somatic symptom disorder. VA Psych Examination (Dec. 18, 2013). However, he underwent another VA psychiatric examination on August 28, 2015, at which time the examiner corrected the diagnosis to conversion disorder. The examining clinical psychologist stated that the diagnosis of conversion disorder represented a correction of the prior, erroneous diagnosis of somatic symptom disorder because conversion disorder better accounts for the manifestations of tremors, dystonic movement, urinary incontinence, and general muscle weakness that are incompatible with any neurological or medical condition or explanation. The examiner also diagnosed the Veteran with major depressive disorder, panic disorder, and borderline personality disorder. The examiner noted it was not possible to differentiate what symptoms are attributable to each diagnosis. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. §§ 3.102, 4.3. After the February 2016 VA medical opinion, the Veteran underwent another VA psychiatric examination in June 2017. VAX (June 5, 2017). The report shows current diagnoses of (1) other specified personality disorder with Cluster B traits, and (2) conversion disorder assigned primarily by history. The examiner stated that the prior diagnoses of major depressive disorder and panic disorder should be considered “rule outs” as the Veteran’s symptom picture is complicated and further psychological testing was recommended to assist in better assessing and delineating symptom involvement beyond the diagnoses assigned during the June 2017 VAX. Ultimately, the February 2016 VA medical opinion relied on the prior diagnosis of somatic symptom disorder. In relevant part, the examiner stated that somatization disorder does not cause obstructive sleep apnea. VAX (Feb. 8, 2016). Since the examiner’s opinion is premised on a service-connected diagnosis that appears to have been expanded, it is inadequate and not probative of the issue. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based on an inaccurate factual premise has no probative value). Additionally, examiner said risk factors for obstructive sleep apnea include obesity, advancing age, and a small oropharyngeal airway, but failed to discuss whether the Veteran had any of those risk factors. Lastly, the examiner failed to address the Veteran’s contention that his obstructive sleep apnea manifested in close proximity to his manifestations of conversion disorder, and that he’s never been obese or diagnosed with a small oropharyngeal airway. For these reasons, the February 2016 VA medical opinion addressing secondary service connection is inadequate. Barr, 21 Vet. App. at 311 (holding that “once the Secretary undertakes the effort to provide [a medical opinion] …he must provide an adequate one.”). Therefore, another medical opinion shall be obtained. 2. Entitlement service connection for a heart condition, to include cardiomyopathy, CHF, and left bundle branch block as due to service-connected somatic symptom disorder is remanded. This issue is remanded for an examination and a new medical opinion. Although the Veteran filed a claim for service connection for cardiomyopathy (non-ischemic), the record contains references to congestive heart failure (CHF), an automatic implantable cardiac defibrillator (generally used to treat arrhythmias), a left bundle branch block, and chest pain at rest. Therefore, the Board has recharacterized the Veteran’s claim as one for a heart condition, to include cardiomyopathy, in order to encompass all conditions reasonably contemplated by the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has not been afforded a VA examination to determine the nature and etiology of any current heart condition. VA’s duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but “(A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service…and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.” 38 C.F.R. § 3.159(c)(4)(i); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary’s obligations under § 5103A to provide a Veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates “some causal connection between his disability and his military service”). The requirement that a disability “may be associated” with service is a “low threshold” standard. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The last element does not require competent evidence of a nexus, only evidence that indicates an association between the disability and service. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In this case, the evidence indicates that the Veteran’s heart condition may have worsened due to his service- connected somatic symptom disorder as he was forced to have a cardiac defibrillator implanted after the onset and progression of his psychiatric disorder. Thus, the elements are sufficiently met to require a VA examination and medical opinion addressing secondary service connection. Therefore, a VA medical examination and opinion addressing secondary service connection should be obtained. As above, the Veteran has not put forth any arguments stating his heart condition began in service or is due to service, and the undated letter from LCSW Epstein does not sufficiently indicate that any heart condition may be associated with his service. See Epstein Letter (received Aug. 8, 2013). Therefore, direct service connection for a heart condition was not reasonably raised by the Veteran or the record. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Board also notes that the February 2016 medical opinion addressing secondary service connection was inadequate to address the etiology of the Veteran’s heart condition because the opinion conclusively stated that the Veteran’s condition is due to his history of alcohol abuse without providing sufficient information or an adequate rationale. Furthermore, the opinion states that his condition has not been aggravated by his service-connected mental disorder because it has improved, yet the record indicates the Veteran’s condition recently required an implantable cardiac defibrillator. The opinion failed to reconcile this discrepancy. Lastly, the opinion did not fully address all the heart conditions reasonably contemplated by the claim. For these reasons, the February 2016 medical opinion is inadequate and another shall be obtained. Barr, 21 Vet. App. at 311.   3. Entitlement service connection for a neurogenic bladder as due to service-connected somatic symptom disorder is remanded. The February 2016 medical opinion was inadequate to address the etiology of the Veteran’s neurogenic bladder because the opinion linked the Veteran’s neurogenic bladder to benign prostatic hyperplasia (BPH), but it is unclear what the opinion relied on for that conclusion, and the opinion did not otherwise provide an adequate rationale. But see Louisville VAMC Record (Feb. 26, 2016) (showing discharge diagnosis of BPH). The opinion also stated that there is no evidence of aggravation based on the Veteran’s usage of catheters and incontinence pads over the years, which ignored the Veteran’s reported history of urinary tract infections (UTIs) and evidence of a hospital admission in 2012 for a UTI with sepsis and pyelonephritis. Furthermore, the opinion ignored the Veteran’s contention that the condition began concurrently with the now service-connected somatic symptom disorder. For these reasons, the February 2016 medical opinion is inadequate. As above, the Veteran has not put forth any argument that his neurogenic bladder condition began in service or is due to service, and his service treatment records are silent for any signs, symptoms, complaints or diagnoses of a neurogenic bladder. Furthermore, the undated letter from LCSW Epstein does not sufficiently indicate that his neurogenic bladder may be associated with his service. See Epstein Letter (received Aug. 8, 2013). Therefore, service connection for a neurogenic bladder on a direct incurrence basis was not reasonably raised by the Veteran or the record. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Board notes that the Veteran’s representative cited medical evidence in support of their position for secondary service connection. The representative cited to an undated VA cardiology outpatient note stating “incontinence due to loss of muscle tone. Unable to walk except very short distances due to dyspnea, weakness, tremors and spasticity.” See NOD (quoting VAMC Louisville record). The representative also cited to the August 2015 VA psychiatric examination which stated, in relevant part, “…the diagnosis of conversion disorder better accounts for his manifestations of tremors, dystonic movement, urinary incontinence, and general muscle weakness…” VAX (Aug. 27, 2015). This medical evidence is insufficient to establish service connection as they are not supported by any rationale and do not distinguish between other potential causes of the Veteran’s condition, such as supranuclear palsy. The Veteran was diagnosed with supranuclear palsy in May 2012, but there is no reference to the condition in the Veteran’s psychiatric examination reports. See Mayo Clinic, Progressive Supranuclear Palsy (last updated March 9, 2018, last visited October 19, 2018). Supranuclear palsy is an uncommon progressive brain disorder that causes serious problems with walking, balance, and eye movements and results from deterioration of cells in the brain that control body movement and thinking. Id. According to the Mayo Clinic, supranuclear palsy often mimics the signs and symptoms of Parkinson’s disease and additional signs and symptoms of supranuclear palsy include awkward movements, falling, sleep disturbances, loss of interest in pleasurable activities, impulsive behavior, and depression and anxiety. Id. For these reasons, the cited medical evidence is insufficient to establish service connection and a VA examination and medical opinion shall be obtained. McLendon, 20 Vet. App. at 83. 4. Entitlement service connection for sexual dysfunction, to include erectile dysfunction and loss of libido as due to service-connected somatic symptom disorder is remanded. Although the Veteran filed a claim for service connection for sexual dysfunction as due to his service-connected psychiatric disorder, his claim was subsequently limited just to erectile dysfunction. While the record contains references to difficulties with achieving and keeping erections, private medical records also indicate loss of libido. Therefore, the Board has recharacterized the Veteran’s claim as one for sexual dysfunction, to include erectile dysfunction and loss of libido, in order to encompass all conditions reasonably contemplated by the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has not yet been afforded a VA examination for this issue, but one should be provided to determine the etiology of the Veteran’s sexual dysfunction. The Veteran asserted that his erectile dysfunction is due to his service-connected mental disorder, however, it has not been shown that he has the requisite medical knowledge and/or expertise to render a medical opinion in this matter as this issue is medically complex and requires knowledge of the interaction between multiple systems of the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Furthermore, the statement by the August 2015 VA psychiatric examiner is not sufficiently probative to be dispositive because it lacks any rationale. Moreover, it fails to account for the private medical record dated October 2004 which demonstrates that the Veteran had erectile dysfunction and libido problems since at least 2003. See Metropolitan Urology Records (Oct. 22, 2004) (Veteran reporting erectile dysfunction and loss of libido since 2003). For these reasons, the Board finds that this issue must be remanded for a genitourinary examination to determine the nature and etiology of any current sexual dysfunction disability. As above, the Veteran has not put forth any argument that his sexual dysfunction began in service or is due to service, and his service treatment records are silent for any signs, symptoms, complaints or diagnoses of a sexual dysfunction. Furthermore, the undated letter from LCSW Epstein does not sufficiently indicate that his sexual dysfunction may be associated with his service. See Epstein Letter (received Aug. 8, 2013). Indeed, medical evidence of record indicates his sexual dysfunction did not arise until 2003. See Metropolitan Urology Records (Oct. 22, 2004). Therefore, direct service connection for sexual dysfunction was not reasonably raised by the Veteran or the record. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). 5. Entitlement to a TDIU, prior to and from August 27, 2015, is remanded. The outcome of the AOJ’s readjudication of the remanded issues could affect the outcome of the claim for entitlement to a TDIU. As such, the Board’s adjudication of entitlement to a TDIIU must be deferred pending completion of the requested remand actions. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Further, the Board notes that a grant of a 100 percent disability evaluation does not always render the issue of entitlement to a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his/her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 . See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted under 38 U.S.C. § 1114(s) if a veteran has a 100 percent disability rating for a single disability, and VA finds that a TDIU is warranted based solely on a disability or disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)). The RO must adjudicate entitlement to a TDIU including on this basis from August 27, 2015. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not proximately due to or aggravated beyond its natural progression by his service-connected somatic symptom disorder. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must address the Veteran’s statements as well as findings on VA examinations on August 28, 2015 and in June 2017. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of each heart condition, to include cardiomyopathy, CHF, and left bundle branch block. The examiner must opine whether it is at least as likely as not that each heart disability identified is (1) proximately due to, or (2) aggravated beyond its natural progression by, his service-connected somatic symptom disorder. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must address the Veteran’s statements as well as findings on VA examinations on August 28, 2015 and in June 2017. The examiner must discuss the Veteran’s reported chest pain at rest and the required automatic implantable cardiac defibrillator. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his neurogenic bladder condition. The examiner must opine whether it is at least as likely as not that his neurogenic bladder is (1) proximately due to, or (2) aggravated beyond its natural progression, by his service-connected somatic symptom disorder. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must address the Veteran’s statements as well as findings on VA examinations on August 28, 2015 and in June 2017. 4. Schedule the Veteran for a genitourinary examination by an appropriate clinician to determine the nature and etiology of any sexual dysfunction, to include erectile dysfunction and/or loss of libido. The examiner must opine whether any sexual dysfunction is at least as likely as not (1) proximately due to, or (2) aggravated beyond its natural progression by, his service-connected somatic symptom disorder. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must address the Veteran’s statements as well as findings on VA examinations on August 28, 2015 and in June 2017 5. Following completion of the above requested actions, readjudicate the remanded issues, including entitlement to a TDIU with consideration pursuant to 38 U.S.C. § 1114(s) from August 27, 2015. If any benefit sought is not granted, issue the Veteran and his representative a supplemental statement of the case, and afford the appropriate period to respond. Thereafter, return the case to the Board as appropriate. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel