Citation Nr: 1806635 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 09-15 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to panic disorder with unspecified depressive disorder (hereinafter, "acquired psychiatric disorder"). 2. Entitlement to service connection for a back disorder, to include scoliosis. 3. Entitlement to an initial rating in excess of 10 percent for service-connected osteoarthritis and spur of right knee (hereinafter, "right knee disorder") based upon limitation of motion (excluding period of temporary total evaluation). 4. Entitlement to an effective date earlier than April 10, 2015, for the award of service connection for acquired psychiatric disorder. 5. Entitlement to an initial rating in excess of 50 percent for service-connected acquired psychiatric disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to February 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony on his back disorder and sleep apnea claims before a Veterans Law Judge (VLJ) in November 2012. A transcript of that hearing is of record; however, that VLJ is no longer with the Board. Under VA regulations, a claimant is entitled to have final determination of his or her claim made by the VLJ who conducted a hearing. 38 C.F.R. § 20.707 (2017). The Veteran was sent correspondence in December 2017 informing him of this fact, and inquiring whether he desired a new hearing. In addition, he was informed that if he did not respond within 30 days, the Board would assume he did not desire a new hearing. No response appears to be of record from the Veteran. Thus, the Board will proceed to address the merits of the back and sleep apnea claims. The record reflects this case has a complex procedural history, which includes prior actions by the Board. Most recently, this case was before the Board in February 2017 at which time it was remanded, in part, for further development of the back and sleep apnea claims to include additional competent medical opinion. Such development appears to have been substantially accomplished, and the case has been returned to the Board for additional appellate consideration. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). For the reasons addressed in the REMAND portion of the decision below, the Veteran's right knee claim, as well as his claims for an earlier effective date and higher initial rating for his service-connected acquired psychiatric disorder, are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding the Veteran's current sleep apnea was incurred in or otherwise the result of his active service, or as secondary to a service-connected disability. 2. The competent medical and other evidence of record clearly and unmistakably reflects the Veteran's scoliosis pre-existed service and was not aggravated therein. 3. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran otherwise has a chronic back disorder that was incurred in or otherwise the result of his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for sleep apnea are not met, to include as secondary to service-connected acquired psychiatric disorder. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for a grant of service connection for a back disorder, to include scoliosis, are not met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Board notes the Veteran has not identified any current deficiency regarding the notification and assistance he has received regarding his sleep apnea and back claims, or in the conduct of the November 2012 hearing. In pertinent part, he has not alleged there was any deficiency in a recent March 2017 VA medical opinion which is against a grant of service connection for these conditions, to include the qualifications of that VA examiner to provide competent medical evidence. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. General Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for certain chronic diseases that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board also observes that it previously determined that competent medical evidence was required to resolve this claim, and the Veteran has not contested that determination. Moreover, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Analysis - Sleep Apnea The Veteran has essentially contended, to include at his November 2012 hearing, that people complained about his loud snoring during service, and that he believed this was the initial manifestation of his sleep apnea. His sister has provided a supporting lay statement regarding these contentions. He has also contended that it is secondary to his service-connected acquired psychiatric disorder. Initially, the Board acknowledges that the Veteran has been diagnosed with sleep apnea. However, his service treatment records contain no entries showing treatment for or a diagnosis of sleep apnea, to include his December 1982 separation examination. Moreover, the first competent medical evidence of sleep apnea appears to be years after service. In fact, the Veteran himself acknowledged at his November 2012 hearing that he was first diagnosed with the condition in 2007 or 2008. The Board further notes that no competent medical evidence is of record which supports a finding that the sleep apnea is directly related to active service. In fact, the opinions expressed by a VA examiner in February 2015 and March 2017 are against such a finding. The Board notes the examiner was familiar with the Veteran's medical history from review of his VA claims folder, and accurately summarized pertinent findings the reports themselves; the opinions expressed on these matters were not in speculative or equivocal language; and were supported by stated rationale which referenced the Veteran's documented medical history. The record also reflects the examiner took into consideration the Veteran's account of snoring during active service, but indicated this was only one possible symptom and there was no indication of other pertinent symptoms in the service treatment records. Moreover, no competent medical evidence is of record which refutes these opinions against the sleep apnea being directly related to service. The Board acknowledges that the Veteran has submitted a private medical opinion dated in July 2016 from Dr. H. J., which indicated that the sleep apnea was aggravated by his depressive disorder and that depressive disorder was aggravated by his sleep apnea and there was "significant co-morbidity" between the two disorders. In support of this opinion, Dr. H. J. cited to a study about the association between several psychiatric disorder and sleep apnea using the VA database, which indicated a significant association when compared to the general population. Dr. H. J. also cited to another study which indicated sleep apnea could worsen the symptoms of anxiety and depression; as well as several studies that showed a reduction in nightmares of posttraumatic stress disorder (PTSD) patient when sleep apnea was treated. As such, it appears from the rationale that the opinion was based upon competent medical studies which demonstrated how sleep apnea could aggravate an acquired psychiatric disorder and not the sleep apnea being aggravated by psychiatric symptoms. Consequently, the Board must find that this opinion does not provide an adequate basis for a grant of service connection for sleep apnea. The Board further notes that in the March 2017 opinion, the VA examiner stated that it was less likely as not that the Veteran's current claimed sleep apnea was proximately due to, the result of, or aggravated by (beyond the natural progression of the disease) the service-connected acquired psychiatric disorder. As noted above, the VA examiner was familiar with the Veteran's medical history. In support of this opinion, the examiner noted, in part, that preponderous of medical literature did not establish a strong correlation between sleep apnea and the service-connected acquired psychiatric disorder. The examiner noted that sleep apnea was a condition that was known to be caused by mechanical obstruction of the airway by soft tissue, such as the obesity and thyroid goiter; and that the Veteran's acquired psychiatric disorder was a psychological condition and did not involve anatomical obstruction of airway. Moreover, the examiner noted that, currently, there was no documentation that supports the service-connected acquired psychiatric disorder as a risk factor for sleep apnea; and that the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM V), has listed corresponding comorbidities that are associated with the Veteran's service-connected acquired psychiatric disorder but has yet to link the Veteran's acquired psychiatric disorder was a causal link or predisposing factors for the development of sleep apnea. The examiner also criticized the July 2016 opinion from Dr. H. J. As with the issue of direct service connection, no competent medical evidence is of record which explicitly refutes the March 2017 VA medical opinion on the matter of secondary service connection. Additionally, the Board reiterates the Veteran has not identified any deficiency with respect to this opinion. Thus, the Board finds that this opinion is entitled to significant probative value in the instant case. In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran's current sleep apnea was incurred in or otherwise the result of his active service, or as secondary to a service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Thus, service connection must be denied. Analysis - Back In this case, the Veteran indicated at his November 2012 hearing that he did not have any back problems prior to service, and that his service treatment records reflect he had scoliosis which was not diagnosed until that time. He also indicated recurrent back problems since service, which he indicated was due to the heavy lifting he did while on active duty. The Board acknowledges that the Veteran's spine was clinically evaluated as normal on both his September 1978 enlistment examination, and his December 1982 separation examination. Moreover, he indicated on concurrent Reports of Medical History that he had not experienced recurrent back pain. Further, the record does not reflect he sought medical treatment for back problems until years after service, and he acknowledged as such at his November 2012 hearing. Nevertheless, a December 1982 chest X-ray did reveal upper thoracic scoliosis, which was convex to the left. Under the law, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b)(1). Moreover, temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Here, the Board notes that the March 2017 VA examiner's opinion stated that the Veteran's scoliosis clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service event, injury, or illness. In support of this opinion, the examiner stated that the in-service X-ray findings of scoliosis was of a congenital or developmental defect; which meant the Veteran's spine developed unnatural from birth and was not supported by literature as being a superimposed disorder during the Veteran's active duty. Therefore, it would not have been aggravated beyond its natural progression considering it developed this way. As previously noted, the Veteran has not challenged the adequacy of the March 2017 VA examiner's opinion. No competent medical evidence is of record which explicitly refutes the examiner on this matter. Moreover, the Court has held that a physician's "unequivocal and uncontradicted opinion" can itself serve as clear evidence to rebut the presumptions of soundness and aggravation. Harris v. West, 11 Vet. App. 456, 461 (1998) (The physician found that a veteran's medical condition, which was not noted at enlistment, preexisted service, and that the worsening during service was commensurate with the natural progression of the condition.). The Board also notes that the examiner's opinion regarding aggravation appears consistent with the fact that the service treatment records contained no entries showing treatment for back problems, his spine was evaluated as normal at his separation examination, and the Veteran reported no recurrent back pain at the time of that separation examination. In view of the foregoing, the Board finds that the competent medical and other evidence of record clearly and unmistakably reflects the Veteran's scoliosis pre-existed service and was not aggravated therein. The Board acknowledges that the Veteran has been diagnosed with other back disorders besides scoliosis, to include lumbar strain and degenerative disc disease. However, it finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran otherwise has a chronic back disorder that was incurred in or otherwise the result of his active service. In pertinent part, such disorders were first diagnosed years after his separation from service. See Mense, supra; Maxson, supra. Moreover, the VA examiner's February 2015 opinion is against the current back disorder being etiologically related to service. The examiner noted, in part, that recent X-rays reflected mild degenerative disc disease, and that if the Veteran sustained an injury 32+ years ago on active duty, the X-ray would be reflective of greater deterioration of the lumbar spine area. The examiner further stated that the current condition was a natural progression of aging. The Board acknowledges that it previously determined in February 2017 that the VA examiner's opinion was inadequate, but that was due to the fact he did not adequately address the in-service X-ray findings of scoliosis. As detailed above, that deficiency was corrected by the March 2017 medical opinion. No deficiency has been identified regarding the examiner's opinion that the findings of lumbar strain and degenerative disc disease were not directly related to service. For these reasons, the Board finds that service connection must be denied for a back disorder. ORDER Service connection for sleep apnea, to include as secondary to service-connected acquired psychiatric disorder, is denied. Service connection for a back disorder, to include scoliosis, is denied. REMAND Initially, the Board notes that its February 2017 remand directed the AOJ to promulgate a Statement of the Case (SOC) regarding the Veteran's claims for an earlier effective date and higher initial rating for his service-connected acquired psychiatric disorder. Manlincon v. West, 12 Vet. App. 238 (1999). However, the record available for review does not reflect an SOC has been promulgated on these issues. Therefore, the Board must remand the case again to ensure compliance with its prior directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes, regarding the right knee claim, that the Veteran contended on his March 2017 Substantive Appeal that the current rating did not adequately address his functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59. These contentions, as well as other evidence of record, intimates the most recent VA examination of November 2016 may not have adequately evaluated the service-connected right knee disorder. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Consequently, the Board concludes that a remand is required to accord the Veteran a new competent medical examination of his service-connected right knee disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an SOC as to the issues of entitlement to an effective date earlier than April 10, 2015, for the award of service connection for panic disorder with unspecified depressive disorder; and an initial rating in excess of 50 percent for the panic disorder with unspecified depressive disorder. The Veteran should be advised of the time period in which to perfect an appeal as to these claims. 2. Request the names and addresses of all medical care providers who have treated the Veteran for his right knee since February 2017. After securing any necessary release, obtain those records not on file. Even if the Veteran does not respond, determine if there are any VA medical records for the pertinent period. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his right knee symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and severity of his service-connected right knee disorder. The claims folder should be made available to the examiner for review before the examination. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. After completing any additional development deemed necessary, readjudicate the right knee increased rating claim on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained since the case was last adjudicated below, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs