Citation Nr: 18153358 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-21 466 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for sleep apnea, to include as secondary to essential hypertension, is reopened. New and material evidence having been received, the claim for entitlement to service connection for impotency, to include as secondary to essential hypertension, is reopened. New and material evidence having been received, the claim for entitlement to service connection for obesity, to include as secondary to essential hypertension, is reopened. New and material evidence having been received, the claim for entitlement to service connection for depression, to include as secondary to essential hypertension, is reopened. Entitlement to service connection for obesity is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to essential hypertension, is remanded. Entitlement to service connection for impotency, to include as secondary to essential hypertension, is remanded. Entitlement to service connection for depression, to include as secondary to essential hypertension, is remanded. FINDINGS OF FACT 1. A July 2010 rating decision denied service connection for sleep apnea, to include as secondary to essential hypertension, impotency, to include as secondary to essential hypertension, obesity, to include as secondary to essential hypertension, depression, to include as secondary to essential hypertension. The Veteran did not file a timely appeal of this decision and it became final. 2. The evidence received since the July 2010 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for sleep apnea, to include as secondary to essential hypertension, impotency, to include as secondary to essential hypertension, obesity, to include as secondary to essential hypertension, depression, to include as secondary to essential hypertension. 3. The Veteran’s obesity is not a disability for which service connection may be granted. CONCLUSIONS OF LAW 1. The July 2010 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for reopening the claim of entitlement to service connection for cause of death have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for obesity have not been met. 38 U.S.C. §§ 501, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 19.5 (2017); VAOPGCPREC 1-2017 (January 6, 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) reopening but denying the claims for service connection for sleep apnea, obesity, impotency, and depression. The appeal initially included a claim for an increased evaluation for hypertension. However, he did not perfect these appeals. Rather, in a May 2016 substantive appeal to the Board (VA Form 9), he specifically limited the appeal to the issue of service connection for sleep apnea, obesity, impotency and depression by checking box 9B and listing the issue those issues and providing argument only on those issues in box 10. There is no indication that the Veteran or his representative were confused by the VA Form 9. See Evans v. Shinseki, 25 Vet. App. 7, 15-17 (2011) (finding that VA must seek clarification from the appellant if there is a “perceived concern about how the appellant had filled out the Form 9” that leaves a question as to whether the appellant wished to continue to appeal an issue). As such, the claim for an increased rating for hypertension is not before the Board. The Veteran submitted his TDIU application in May 2015. The AOJ denied TDIU entitlement in May 2015. Following the Veteran’s notice of disagreement, the Statement of the Case (SOC) concerning the issue of TDIU was rendered in December 2016. A VA Form 9 was associated with the Veteran’s claims file in January 2017. The Veteran’s TDIU claim has not been certified to the Board for appellate review at this time; therefore, the Board does not have the jurisdiction necessary to move forward with these claims. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2017). The Veteran’s TDIU entitlement claim is referred to the AOJ for appropriate action. New and Material Evidence Generally, a final rating decision or Board decision may not be reopened, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105. Under 38 U.S.C. § 5108, however, “[i]f 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.” New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim). 1. Whether new and material evidence has been received to reopen a claim for service connection for obesity The RO initially denied a claim for entitlement to service connection for sleep apnea, impotency, obesity, and depression, all to include as secondary to service connected essential hypertension in a July 2010 rating decision as there was no evidence of the disabilities occurring in service, nor any medical evidence of a nexus between the disabilities and the Veteran’s service-connected essential hypertension. That decision was not appealed and became final. Evidence of record at the time of the July 2010 rating decision included the Veteran’s service medical records, post-service treatment records from January 1991 until July 2003, and a June 2010 VA examination. Pertinent evidence received subsequent to the July 2010 rating decision includes additional post-service medical records through January 2012, a June 2015 VA examination, and evidence that there may be outstanding relevant post-service treatment records. The evidence received since the July 2010 rating decision is new and material. The claim was denied in July 2010 as there was no medical evidence of a link between the Veteran’s claimed disabilities and his active duty service or his service-connected essential hypertension. The evidence submitted after the July 2010 rating decision is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim as it may support the Veteran’s contentions that the Veteran’s obesity was related to his active duty service, to include his service-connected essential hypertension. Accordingly, reopening of the claim of entitlement to service connection for obesity is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for sleep apnea As discussed above, the evidence submitted after the July 2010 rating decision is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim as it may support the Veteran’s contentions that the Veteran’s sleep apnea was related to his active duty service, to include his service-connected essential hypertension. Specifically, records from Kaiser describe the condition as a co-morbidity to the hypertension. Accordingly, reopening of the claim of entitlement to service connection for sleep apnea is warranted. 3. Whether new and material evidence has been received to reopen a claim for service connection for impotency As discussed above, the evidence submitted after the July 2010 rating decision is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim as it may support the Veteran’s contentions that the Veteran’s impotency was related to his active duty service, to include his service-connected essential hypertension. In the June 2017 brief the Veteran’s representative reported that the Veteran had been told by the last C&P examiner that his medications likely caused the condition. Accordingly, reopening of the claim of entitlement to service connection for impotency is warranted. 4. Whether new and material evidence has been received to reopen a claim for service connection for depression As discussed above, the evidence submitted after the July 2010 rating decision is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim as it may support the Veteran’s contentions that the Veteran’s depression was related to his active duty service, to include his service-connected essential hypertension. Specifically, records include new diagnoses and also suggest an onset of symptoms close to his release from service. Accordingly, reopening of the claim of entitlement to service connection for depression is warranted. Service Connection It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by a veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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 Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). 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 deemed 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. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that his obesity is a disability that is related to his service-connected essential hypertension. The first element required in a claim for service connection is a current disability. The Board finds that service connection is not warranted due to the absence of proof of a current disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). On January 6, 2017, VA’s Office of General Counsel (OGC) issued a precedential opinion addressing questions regarding whether obesity may be considered a “disease” for the purposes of service connection under 38 U.S.C. §§ 1110 and 1131 and whether obesity may be considered a disability for purposes of secondary service connection. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and, therefore, may not be service-connected on a direct or secondary basis. The opinion notes that particularities of body type, such as being overweight or underweight, do not, of themselves, constitute disease or disability subject to service connection. Id. The opinion further held that, because it occurs over an extended period of time, the onset of obesity cannot qualify as an in-service “event” for the purposes of establishing service connection. The General Counsel opinion recognized that several organizations, including the American Medical Association (AMA) and some Federal agencies, have stated that obesity is a disease, but noted these statements were made for a variety of purposes other than disability compensation. It was noted that the AMA voted to recognize obesity as a disease in order to advance obesity treatment and prevention, but such decision was contrary to the recommendation of the AMA’s Council on Science and Public Health. The General Counsel opinion noted that, while organizations and agencies that classify obesity as a disease reasonably may do so for purposes of promoting understanding, prevention, and treatment of conditions that jeopardize a person’s health, it does not necessarily follow that obesity must be considered a disease for purposes of Title 38, United States Code, as a matter of law. Rather, the question of whether obesity should be considered a disease involves exercise of the gap-filling authority vested in VA under 38 U.S.C. § 501, which may include consideration of factual and policy considerations, such as whether there is general consensus that obesity is a disease or continued divergence of opinion. VAOPGCPREC 1-2017. The General Counsel opinion concluded that VA’s policy that obesity per se is not a disease for purposes of establishing entitlement to service connection under 38 U.S.C. §§ 1110 and 1131, is consistent with governing statutes and VAOGC precedential decisions, and supported by a number of scientific authorities. Id. The Board is bound by precedential opinions of VA’s General Counsel. 38 C.F.R. § 19.5. Thus, while the record shows that the Veteran is obese, obesity is not considered a disease or injury for which direct or secondary service connection may be granted. Id. Both theories of service connection require a current disability and therefore service connection cannot be granted as secondary to asthma or for obesity on its own. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the Veteran has not been able to establish a current disability for VA purposes. As such, that doctrine is not applicable in the instant appeal and this claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to essential hypertension is remanded. Upon review of the claims file, it is apparent that a remand is necessary before the remaining issue on appeal can be adjudicated. The Veteran’s private medical records indicate that he has a diagnosis of sleep apnea, but there is no medical evidence to support a nexus between his sleep apnea and his active duty service or his service-connected essential hypertension. The record further reflects that the Veteran continues to receive medical treatment from VA, but the claims file does not contain VA treatment records after June 2016. As the Veteran’s medical records may support the Veteran’s claim, VA should attempt to obtain the Veteran’s outstanding medical records and associate those records with the claims file. Additionally, the RO should schedule the Veteran for a VA examination regarding his claim that his sleep apnea is related to his active duty service, to include his service-connected essential hypertension. 2. Entitlement to service connection for impotency, to include as secondary to essential hypertension is remanded. The Veteran’s private medical records indicate that he has a diagnosis of impotency, but there is no medical evidence to support a nexus between his impotency and his active duty service or his service-connected essential hypertension. The record further reflects that the Veteran continues to receive medical treatment from VA, but the claims file does not contain VA treatment records after June 2016. As the Veteran’s medical records may support the Veteran’s claim, VA should attempt to obtain the Veteran’s outstanding medical records and associate those records with the claims file. Additionally, the RO should schedule the Veteran for a VA examination regarding his claim that his impotency is related to his active duty service, to include his service-connected essential hypertension. 3. Entitlement to service connection for depression, to include as secondary to essential hypertension is remanded. The Veteran’s private medical records indicate that he has a diagnosis of depression, but there is no medical evidence to support a nexus between his depression and his active duty service or his service-connected essential hypertension. The record further reflects that the Veteran continues to receive medical treatment from VA, but the claims file does not contain VA treatment records after June 2016. Additionally, private records refer to treatment with Inglewood Psychiatry and a social worker. These records have not yet been obtained. As the Veteran’s medical records may support the Veteran’s claim, VA should attempt to obtain the Veteran’s outstanding medical records and associate those records with the claims file. Additionally, the RO should schedule the Veteran for a VA examination regarding his claim that his depression is related to his active duty service, to include his service-connected essential hypertension. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. Engelber at Inglewood Psychiatry and K. Nishimoto, LCSW and any other private providers he has seen for his claimed conditions. Make two requests for the authorized records from these facilities, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea. The examiner must opine: a) whether it is at least as likely as not related to an in-service injury, event, or disease, or, b) whether it is at least as likely as not (1) proximately due to the Veteran’s service-connected essential hypertension, or (2) aggravated beyond its natural progression by the Veteran’s service-connected hypertension. The examiner must discuss the lay report of symptoms during service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s impotency. The examiner must opine: a) whether it is at least as likely as not related to an in-service injury, event, or disease, or, b) whether it is at least as likely as not (1) proximately due to the Veteran’s service-connected essential hypertension, to include any medications taken for this condition or (2) aggravated beyond its natural progression by the Veteran’s service-connected hypertension. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s depression. The examiner must opine: a) whether it is at least as likely as not related to an in-service injury, event, or disease, or, (Continued on the next page)   b) whether it is at least as likely as not (1) proximately due to the Veteran’s service-connected essential hypertension, or (2) aggravated beyond its natural progression by the Veteran’s service-connected hypertension. the examiner must discuss the Veteran’s lay report of the onset of symptoms. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel