Citation Nr: 1808033 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-27 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for morbid obesity secondary to residuals of a left knee injury with arthritis. 2. Entitlement to service connection for sleep apnea secondary to residuals of a left knee injury with arthritis. 3. Entitlement to service connection for atrial fibrillation with history of acute congestive heart failure secondary to residuals of a left knee injury with arthritis. 4. Entitlement to service connection for hypertension secondary to residuals of a left knee injury with arthritis. 5. What initial rating is warranted for an unspecified depressive disorder rated as 30 percent from December 23, 2010 to April 5, 2017? 6. What initial rating is warranted for an unspecified depressive disorder rated as 70 percent since April 6, 2017? 7. Entitlement to a total disability rating on the basis of individual unemployability due to a service-connected disability. REPRESENTATION Appellant represented by: Paul M. Goodson, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran performed active duty from May 1970 to September 1970, and April 1989 to May 1989. The Veteran also served in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a hearing in January 2016 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. In May 2017 VA granted a 70 percent rating for an unspecified depressive disorder, effective April 6, 2017. As that was not a full grant of the benefit sought on appeal, his claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issues of entitlement to a rating in excess of 70 percent from April 6, 2017 for an unspecified depressive disorder, and entitlement to a total disability rating on the basis of individual unemployability due to a service connected disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Obesity is not a disability for VA compensation purposes. 2. Sleep apnea was not demonstrated while on active duty, and it is not related to a service-connected disability. 3. Atrial fibrillation with history of acute congestive heart failure was not demonstrated while on active duty, it was not compensably disabling within a year of separation from active duty, and it is not related to a service-connected disability. 4. Hypertension was not demonstrated while on active duty, it was not compensably disabling within a year of separation from active duty, and it is not related to a service-connected disability. 5. From December 23, 2010 to April 5, 2017, the Veteran's unspecified depressive disorder was not manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Obesity is not a disability for VA compensation purposes. 38 U.S.C. §§ 101(24), 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017); VAOPGCPREC 01-2017 (January 6, 2017). 2. Sleep apnea is not the result of a disease or injury incurred in or aggravated by service, and it is not due to or aggravated by a service connected disorder. 38 U.S.C. §§ 101(24), 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.159, 3.310 (2017). 3. Atrial fibrillation with history of acute congestive heart failure is not the result of a disease or injury incurred in or aggravated by service, it may not be presumed to have been so incurred, and it is not due to or aggravated by a service connected disorder. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 4. Hypertension is not the result of a disease or injury incurred in or aggravated by service, it may not be presumed to have been so incurred, and it is not due to or aggravated by a service connected disorder. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The schedular criteria for an evaluation in excess of 30 percent rating for an unspecified depressive disorder were not met from December 23, 2010 to April 5, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the claims addressed VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Active military service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Active military service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. In order to establish status as a veteran within the meaning of 38 U.S.C. § 101(24), "the appellant must establish that he was 'disabled ... from a disease or injury incurred or aggravated in the line of duty.'" Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). To establish entitlement to service connection for a disability, 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 the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For certain disabilities, such as hypertension and cardiovascular disease, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of a veteran's discharge from active duty. 38 U.S.C. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. As noted the Veteran served on active duty/active duty for training from May 1970 to September 1970, and from April 1989 to May 1989. The Veteran also served in the National Guard from February 1970 to December 1990. In his March 2012 notice of disagreement, the Veteran argued that VA "missed" a period of service in excess of 20 years as well as the related service treatment records in review of his claims. While the Veteran served for many years in the National Guard the question whether an injury or disease may be service connected is governed by 38 U.S.C. §§ 101(24), 1110, 1131. Further, from these statutes it is clear that a disease incurred while performing inactive duty may not be service connected. Further, a disease or injury while not performing active duty, and while not performing on active duty for training may not be service connected. In this case, the Veteran is not asserting that he was disabled from a disease or injury incurred in the line of duty while in the National Guard, nor does the record support such finding. Residuals of Left Knee Injury with Arthritis The Veteran claims entitlement to service connection for morbid obesity, sleep apnea, atrial fibrillation, and hypertension due to residuals of a left knee injury with arthritis. Specifically, the Veteran argues that his left knee injury with arthritis caused morbid obesity. He further argues that obesity caused or aggravated sleep apnea, atrial fibrillation, and hypertension. Thus, the Veteran's claims of entitlement to service connection for sleep apnea, atrial fibrillation, and hypertension depend on the outcome of his claim of entitlement to service connection for morbid obesity. In this regard, VA's General Counsel in a binding precedent opinion held that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110, 113. Therefore, obesity may not be service connected on a direct basis. VA General Counsel further held that obesity is not a "disability" for the purposes of secondary service connection under 38 C.F.R. § 3.310. VAOPGCPREC 01-2017 (January 6, 2017). Hence, obesity cannot be service connected, to include due to a service connected disorder. As such, the Veteran's claims based on theory of entitlement to secondary service connection for sleep apnea, hypertension, and atrial fibrillation due to obesity caused by a service connected disorder must be denied. Direct service connection After reviewing the evidence of record the Board finds that entitlement to service connection for sleep apnea, hypertension, and atrial fibrillation cannot be granted on a direct basis. The evidence shows that the Veteran has sleep apnea, hypertension, and atrial fibrillation. A review of medical records, including a January 2012 VA examination report confirms a diagnosis of each disability. Under the second service connection element, however, there must be evidence that a relevant disease or injury was incurred in or aggravated by active service. Holton v. Shinseki, 557 F.3d 1362, 1366. Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of his service as shown by the veteran's service record, the official history of each organization in which the veteran served, the appellant's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Hypertension There is no evidence of record that the Veteran's hypertension was incurred in or was aggravated by active service. The record neither reflects, nor does the Veteran claim that he had hypertension while in service. Similarly, no medical evidence of record indicates that hypertension was manifested to a compensable degree during service or within one year of separation any term of active duty. Medical records from May 1989 record normal blood pressure readings, and do not note a history or diagnosis of hypertension. The Veteran was described as overweight and in good health by Dr. R.K, in June 1992. A June 1997 medical record documents an isolated blood pressure reading of 152/91. While the January 2012 VA examination report references a medical history of hypertension onset in "mid 1990", a review of the medical records show the first record of a diagnosis for hypertension was in January 2001. Prior records do not show that hypertension manifested to a compensable degree within one year of separation from active duty. Finally, the Veteran's private physician, Dr. R.R., opined in an April 2012 letter that the appellant's obesity was due to his sedentary state secondary to his knee pain, as well as his ingestion of the diet pill Fenphen most likely caused his hypertension. As obesity is not a service connected disorder it follows that neither a left knee disorder, nor hypertension claimed as secondary to obesity caused by a left knee disorder are not service connected. Sleep Apnea There is no evidence that the Veteran's sleep apnea was demonstrated during either period of active service. The record does not reflect, nor does the Veteran assert that he experienced signs or symptoms of sleep apnea while in service. Indeed, the Veteran was not diagnosed with sleep apnea until October 2002. While a letter dated April 2012 from a private physician, Dr. R.R., opined that the Veteran's obesity due to a sedentary state secondary to his knee pain caused obstructive sleep apnea, that theory does not provide a basis to grant service connection as a matter of law in light of the binding opinion from VA General Counsel. VAOPGCPREC 1-2017. The Veteran was afforded a VA examination in January 2012. The examiner also opined that the Veteran's sleep apnea was most likely caused by his morbid obesity and uncontrolled hypertension. As discussed above, neither obesity nor hypertension is a service connected disorder. Atrial Fibrillation There is no evidence of record, nor does the Veteran assert that his atrial fibrillation incurred in or was aggravated by active service. No medical evidence of record indicates that the Veteran's atrial fibrillation was manifested to a compensable degree during service or within one year of his separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran was diagnosed with atrial fibrillation in July 2010. In the Veteran's January 2012 VA examination report, the examiner opined that the appellant's atrial fibrillation was most likely caused by his comorbid obesity and were not associated with any service connected disability. Dr. R.R.'s April 2012 letter stated that the Veteran's obesity from his sedentary state secondary to his knee pain, as well as his ingestion of the Fenphen most likely caused atrial fibrillation. In light of the foregoing evidence the preponderance of the evidence is against the elements necessary for service connection. As such, the Board concludes that service connection for obesity, sleep apnea, hypertension or atrial fibrillation is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Ratings The Veteran contends that his unspecified depressive disorder from December 23, 2010 to April 5, 2017 was more severe than the assigned rating reflects. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4 . When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C. § 5107(b). A veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2017). When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether he is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's unspecified depressive disorder is rated under Diagnostic Code 9434. VA regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130. The term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms listed. Instead, VA will consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. Diagnostic Code 9434 provides for ratings as follows: 30 percent- Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 50 percent - Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The Veteran's depressive disorder was assigned a 30 percent disability rating from December 23, 2010 to September 8, 2014 under Diagnostic Code 9434. The appellant claims entitlement to a higher initial rating. From December 23, 2010 to April 5, 2017 The Veteran's unspecific depressive disorder does not warrant a rating higher than 30 percent from December 23, 2010 to September 8, 2014. In this regard, the evidence preponderates against finding that it resulted in occupational and social impairment with reduced reliability and productivity. In January 2011, the Veteran's spouse described the claimant as being in a deep depression and often staring into outer space. She stated that he did not have any interest in things going on around him. In an October 2011 statement, the Veteran described deep depression and experiencing anxiety. He stated that he was unable to control his actions and feelings, and discussed the need for anger management. The Veteran was afforded a VA examination in January 2012. He reported a depressed mood, anxiety, chronic sleep impairment, a mild memory loss, disturbances in motivation and mood, difficulty . Mental status examination revealed that the Veteran reported symptoms of a depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining relationships, and suicidal ideation. The examiner noted no other symptoms attributable to mental disorders. He also found that the Veteran was capable of managing his own affairs. The examiner diagnosed a depressive disorder not otherwise specified. Notwithstanding the appellant's report of suicidal ideation the examiner opined that the Veteran suffered from no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. In light of the above the Board finds that the preponderance of the evidence was against entitlement to an increased rating for an unspecified depressive disorder between December 23, 2010 and April 5, 2017. The appellant's disorder was not shown to have caused circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. While the January 2012 examination noted suicidal ideation, in the opinion of the examiner that symptom alone, and when combined with the claimant's other symptoms, did not rise to the level of causing occupational and social impairment with reduced reliability and productivity. There is no competent evidence to the contrary. As such, the Board finds that the claimant's psychiatric illness did not warrant a higher rating during this term. Hence, the claim is denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 C.F.R. § 3.102. ORDER Entitlement to service connection for morbid obesity secondary to residuals of a left knee injury with arthritis is denied. Entitlement to service connection for sleep apnea secondary to residuals of a left knee injury with arthritis is denied. Entitlement to service connection for atrial fibrillation with history of acute congestive heart failure secondary to residuals of a left knee injury with arthritis is denied. Entitlement to service connection for hypertension secondary to residuals of a left knee injury with arthritis is denied. Entitlement to an initial rating for an unspecified depressive disorder associated with residuals of a thoracolumbar spine injury, in excess of 30 percent from December 23, 2010 to April 5, 2017 is denied. REMAND As noted above, in May 2017 the appellant was granted a 70 percent rating for his unspecified depressive disorder. Significantly, the RO did not issue a supplemental statement of the case explaining why a higher rating was not assigned. Under 38 C.F.R. § 19.31 (2017), a supplemental statement of the case must be issued when the RO receives additional pertinent evidence after the statement of the case or the most recent supplemental statement of the case. As that was not accomplished further development is required. Since resolution of the total disability rating on the basis of individual unemployability claim is dependent, at least in part, on the outcome of the claim for an increase in the Veteran's rating for an unspecified depressive order since April 6, 2017, the Board must defer consideration of that claim at this time. Harris v. Derwinski, 1 Vet. App 180, 183 (1991) Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his unspecified depressive disorder, residuals of a total left and right knee replacements to include surgical scars, and residuals of a thoracolumbar injury since August 2013. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the electronic file. If the RO cannot locate records which the Veteran has identified it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. After first reviewing the VBMS and Virtual VA files to ensure that VA has fulfilled the duty to assist the appellant, to include the conduct of any required examinations, readjudicate the remaining claims. If any claim remains denied issue a supplemental statement of the case on the issue of entitlement to an initial rating in excess of 70 percent since April 6, 2017 for an unspecified depressive disorder, and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. The Veteran and his representative are then to be afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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 that are 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. §§ 5109B, 7112 (2012). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs