Citation Nr: 18152698 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 17-34 296 DATE: November 27, 2018 ORDER The application to reopen the claim for service connection for sleep apnea is granted. Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for a kidney disorder is denied. Entitlement to a compensable rating for hypertension is granted. Entitlement to a compensable initial rating for headaches is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for erectile dysfunction to include as secondary to service-connected disability is remanded. Entitlement to an initial rating in excess of 60 percent for coronary artery disease is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence obtained since the final December 2013 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for sleep apnea. 2. The VA does not have a hearing loss disability as defined by VA regulation in either ear. 3. The Veteran has not had any kidney disorder at any time during the appeal period. 4. The Veteran’s hypertension requires continuous medication for control, and the record indicates that without medication his diastolic pressure would be predominantly 100 or more. 5. Since the grant of service connection the Veteran has not experienced prostrating headaches. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the Veteran’s claim for service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 3. The criteria for service connection for a kidney disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for a 10 percent rating for hypertension have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7101 (2017). 5. The criteria for an initial compensable rating for headaches have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1990 to January 2001. Service Connection 1. Whether new and material evidence has been received to reopen the claim for service connection for sleep apnea. The Veteran’s claim for service connection for sleep apnea was denied by an unappealed December 2013 rating decision. The Veteran did not submit a notice of disagreement (NOD) or submit new and material evidence within a year of this decision. Absent a perfected appeal, a decision by the agency of original jurisdiction is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). The Veteran submitted an application to reopen his claim in June 2015. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence upon which the VA Regional Office (RO) formulated the December 2013 decision included the service treatment records (STRs) and a November 2013 VA medical opinion. The RO denied the claim on the basis that sleep apnea was not shown during service and based on a VA medical opinion that the Veteran’s current sleep apnea was not related to an incident of carbon monoxide poisoning during service. The medical records obtained since the December 2013 final rating decision include a March 2017 private medical opinion that the Veteran’s sleep apnea is secondary to the Veteran’s service-connected low back and left knee disabilities. This new favorable evidence is material to the Veteran’s claim. As new and material evidence has been received, the claim for service connection for sleep apnea is reopened. 2. Entitlement to service connection for bilateral hearing loss disability. The Veteran submitted his claim for service connection for bilateral hearing loss disability in March 2016. He wrote on his claim that he thought that he might have some hearing loss. He said that he was exposed to frequent helicopter noise and various weapons fire in service. Generally, in order to prevail on the issue of service connection the evidence must 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 (Fed. Cir. 2004). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A July 2016 VA audiological report reveals that the Veteran’s auditory thresholds did not exceed 15 decibels in either ear from 500 to 4000 Hertz. Additionally, the report showed that the Veteran had 98 percent speech recognition in the right ear and 100 percent speech recognition in the left ear. He thus did not have hearing loss as defined by VA in either ear. See 38 C.F.R. § 3.385. The Board notes that the Veteran’s claim for service connection indicated that he was unsure as to whether he had hearing loss. As noted above, audiological testing clearly shows that the Veteran does not have hearing loss in either ear. There is no evidence to indicate that the Veteran has ever had a hearing loss disability as defined by VA in either ear. In the absence of evidence of a disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a bilateral hearing loss disability is not warranted. 3. Entitlement to service connection for a kidney disorder. The Veteran’s claim for service connection for a kidney disorder was received in March 2016. The Veteran asserted that he was entitled to service connection both on a direct basis and as secondary to his service-connected hypertension. A November 2013 VA examination report notes that September 2013 records referred to the Veteran having chronic kidney disease. The examiner noted that objective measurements of kidney function were normal in July, August, September and November 2013. The examiner stated that the Veteran did not have chronic kidney disease. The Veteran underwent an ultrasound of the liver in November 2015. The findings noted that the right kidney was visualized and that it was negative for hydronephrosis or mass. On VA examination in July 2016 the Veteran stated that he had not been aware that he had kidney disease until he saw it in his medical records. He reported that he had never been treated for a kidney condition and had never seen a specialist. The VA examiner stated that any kidney condition had resolved and there were no current findings to render a diagnosis. There is no evidence to indicate that the Veteran has had any kidney disorder at any time since receipt of his March 2016 claim for service connection. In the absence of evidence of a disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for a kidney disorder is not warranted. Increased Rating 4. Entitlement to a compensable rating for hypertension A February 2001 rating decision granted the Veteran service connection and a noncompensable rating for hypertension. The Veteran’s claim for a compensable rating was received by VA in March 2016. The Veteran’s service-connected hypertension is evaluated as noncompensable under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under DC 7101, a 10 percent rating is warranted where diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or the individual has a history of diastolic pressure of predominantly 100 or more and requires continuous medication for control. For a 20 percent rating, diastolic pressure must be predominantly 110 or more or systolic pressure must be 200 or more. A 40 percent rating requires diastolic pressure predominantly 120 or more, and a 60 percent rating requires diastolic blood pressure to be predominantly 130 or more. In February 2014 a private physician filled out a hypertension disability benefits questionnaire. The physician indicated that the Veteran had a history of diastolic blood pressure elevation predominantly 100 or more. On VA examination in November 2015, the examiner indicated that the Veteran did not have a history of diastolic elevation of 100 or more. However, at the examination the Veteran’s diastolic measurements were 104, 96 and 95. The report states that the Veteran was on three hypertension medications at that time. This indicates to the Board that if the Veteran had not been taking hypertension medications he would have had diastolic pressure predominantly 100 or more. In September 2016 a VA examiner again noted that the Veteran did not have a history of diastolic elevation to predominantly 100 or more. At the examination the Veteran’s diastolic measurements were 87, 84 and 85. The Veteran reported that he had had to increase his hypertension medications to achieve his current status. Given the February 2014 physician’s report that the Veteran had a history of diastolic blood pressure elevation predominantly 100 or more, and given the November 2015 blood pressure readings above, or almost 100, when the Veteran was on three hypertension medications, the Board finds that the evidence indicates that if he was not on continuous medication his diastolic pressures would be predominantly 100 or more. Accordingly, the Veteran has met the criteria for a 10 percent rating under DC 7101. The numerous blood pressure readings in the record indicate that the Veteran does not exhibit diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. Consequently, a rating in excess of 10 percent rating is not warranted at any time. Accordingly, the Veteran is entitled to a 10 percent rating, but no higher, for the entire appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 5. Entitlement to a compensable initial rating for headaches The September 2016 rating decision on appeal granted the Veteran service connection for headaches. The Veteran was assigned a noncompensable rating effective from March 7, 2016. The Veteran’s attorney submitted a notice of disagreement in January 2017 asserting that the Veteran met the criteria for a compensable rating. He stated that the Veteran experiences visual or “ocular” migraines for which the characteristic attacks are primarily visual. He noted that the visual migraines may occur with or without an accompanying headache. A November 2015 VA examination report referenced that the headaches that the Veteran had with some of his TIA episodes raised the possibility of atypical migraines as the cause of his symptoms as well. The Veteran was noted to have had two episodes of visual disturbance he described as “like stars, blurry vision,” with associated head “pressure” since August 2015. Tricare records dated in December 2015 indicate that the Veteran had been seen in the past for headaches related to transient ischemic attacks (TIA). Treatment records dated in January 2016 and February 2016 show that the Veteran denied headaches. On VA central nervous system examination in September 2016, the Veteran did not report any headaches. He reported that he was able to drive and that he had a new job as a forklift operator. He said that he had had no TIA symptoms or neurologic changes since December 2015. The Veteran denied having any vision loss or any other TIA symptoms since prior to the November 2015 VA examination. Under DC 8100, a noncompensable rating is assigned when there is evidence of less frequent attacks. A 10 percent rating requires evidence of prostrating attacks averaging one in two months over the last several months. A 30 percent rating requires evidence of prostrating attacks occurring on average once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Based on the review of the record and the relevant law, the Board finds that a compensable rating for the Veteran’s service-connected headaches is not warranted. Since the grant of service connection the Veteran has not reported any headaches. The treatment records show that the Veteran has denied headaches and the September 2016 VA examination noted that the Veteran denied having TIA, neurologic, or vision symptoms since prior to November 2015. As the evidence of record does not reflect that the Veteran has experienced headaches that are prostrating in nature at any time since the March 7, 2016 grant of service connection, a compensable initial rating is not warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea is secondary to his service-connected disabilities. In March 2017, a private clinician reviewed the Veteran’s records and opined that the Veteran’s sleep apnea was secondary to service-connected disability. However, the private examiner did not submit sufficient rationale to support her opinion. The examiner found that the service connected knee disorder caused the Veteran to exercise less which resulted in weight gain which aggravated the apnea. VA’s General Counsel (GC) issued a precedential opinion concerning secondary service connection based on obesity. See VAOPGCPREC 1-2017 (Jan. 6, 2017). In that opinion, GC concluded that obesity could qualify as an “intermediate step” between a service-connected disability and a current disability. Under 38 C.F.R. § 3.310 (a), a disability that is proximately due to or the result of a service-connected disease or injury is service connected. A determination of proximate cause is one of fact, for determination by an adjudicator. Using obesity as an “intermediate step,” adjudicators must resolve (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity caused by the service-connected disability. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. See VAOPCGPREC 1-2017 (Jan. 6, 2017). A medical opinion is required to obtain this evidence. Although a November 2015 VA examiner opined that the Veteran’s sleep apnea is not secondary to hypertension she did not provide an opinion regarding whether the Veteran’s sleep apnea is secondary to his other service-connected disabilities. The Board finds that the current evidence of record is insufficient to decide the Veteran’s claim and that his claim for service connection for sleep apnea must be remanded for a new VA medical opinion. 2. Entitlement to service connection for erectile dysfunction as secondary to service-connected disability is remanded. A VA physician opined in July 2016 that the Veteran’s erectile dysfunction was due to hypogonadism. In September 2016 a VA examiner opined that the Veteran’s erectile dysfunction was not attributable to a CNS (central nervous system) disease. However, neither of these examiners provided an opinion regarding whether the Veteran’s erectile dysfunction is aggravated by any of his service-connected disabilities, which include hypertension and CAD. The Board further notes that a February 2016 Tricare record indicates the possibility that the Veteran’s erectile disorder is related to medications and circulatory disease. Accordingly, the July 2016 and September 2016 VA examination reports are insufficient and a new VA opinion addressing aggravation must be obtained. 3. Entitlement to an initial rating in excess of 60 percent for coronary artery disease is remanded. A March 2017 rating decision granted service connection for CAD. Later in March 2017 the Veteran submitted a notice of disagreement (NOD) with the 60 percent rating assigned. There is no indication in the file that the agency of original jurisdiction (AOJ) has recognized the NOD. Consequently, the issue of a higher initial rating for CAD must be remanded for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 239, 240- 41 (1999). 4. Entitlement to TDIU is remanded. The TDIU issue must be remanded because it is inextricably intertwined with the claim for an increased initial rating for CAD and they must be considered together. Thus, a decision by the Board on the Veteran’s TDIU claim would, at this point, be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). The matter is REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records to the extent possible. 2. When the above action has been accomplished, provide the Veteran an appropriate medical examination regarding his sleep apnea disorder. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea disorder is caused or aggravated by any of the Veteran’s service-connected disabilities, including his orthopedic disabilities. The examiner must additionally address the following questions on an as likely as not basis (50 percent probability or greater) (a) whether a service-connected disability caused the Veteran to become obese; (b) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the sleep apnea; and (3) whether the sleep apnea would not have occurred but for obesity caused by the service-connected disability. The examiner should discuss the sleep apnea findings of the November 2013 and November 2015 VA examination reports as well as the findings of the March 2017 private medical opinion. If the Veteran does not report for the examination, the examiner should provide an opinion based on a review of the record. Reasons and bases for all opinions should be provided. 3. When the Veteran’s updated medical records have been obtained, provide the Veteran an appropriate medical examination regarding his erectile dysfunction. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction is aggravated (permanently worsened) by any of the Veteran’s’ service-connected disabilities, including hypertension and coronary artery disease. If the Veteran does not report for the examination, the examiner should provide an opinion based on a review of the record. Reasons and bases for all opinions should be provided. 4. Issue a statement of the case (SOC) to the Veteran which addresses his claim for an initial rating in excess of 60 percent for CAD. The Veteran should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the issue will not be returned to the Board for appellate consideration following the issuance of the statement of the case unless he perfects his appeal. 5. Thereafter, readjudicate the issues in appellate status. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel