Citation Nr: 18116303 Decision Date: 07/05/18 Archive Date: 07/05/18 DOCKET NO. 14-99 804A DATE: July 5, 2018 ORDER Service connection for a heart disability is granted. Service connection for osteomyelitis is granted. A rating of 100 percent for optic neuritis is granted. FINDINGS OF FACT 1. The Veteran’s heart disability is secondary to his obstructive sleep apnea. 2. The Veteran’s osteomyelitis was caused by treatment for his heart disability. 3. There is no competent medical evidence separating the effects of the Veteran’s glaucoma versus optic neuritis with respect to the Veteran’s visual field defect of concentric contraction to less than 5 degrees bilaterally. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection for osteomyelitis have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2017). 3. The criteria for an evaluation of 100 percent for optic neuritis have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.79 Diagnostic Codes 6026-6080 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to October 1968. He died in August 2017. In April 2018 the Appellant was notified that she had been accepted as a valid substitute in the Veteran’s pending appeals. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2017). Similarly, any increase in severity of a non-service-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 progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for a heart disability The Appellant has argued that the Veteran’s heart condition was secondary to his service-connected multiple sclerosis and sleep apnea. Multiple medical opinions have been associated with the Veteran’s claims file with respect to the etiology of his heart condition. In August 2016 a nurse practitioner and Ph.D. working as the coordinator for a hospital ventricular assist device program, stated that there is a relationship between sleep apnea and heart failure, and provided a copy of a 2003 American Heart Association article that concludes that in a substantial proportion of patients with heart failure, obstructive sleep apnea may play a role in the pathogenesis and progression of cardiac failure through mechanical, adrenergic, and vascular mechanisms. The article also states that more research is required to determine basic mechanisms by which obstructive sleep apnea exerts its adverse effects on the cardiovascular system. In an October 2016 statement the private doctor who had treated the Veteran’s obstructive sleep apnea opined that the Veteran’s congestive heart failure was more likely than not secondary to his sleep apnea. The doctor authored another letter in April 2018, opining that the Veteran’s “cardiac condition was exacerbated by his obstructive sleep apnea, and worsened by his obstructive sleep apnea.” In December 2016, the private doctor who had treated the Veteran’s multiple sclerosis, authored a letter stating that the incidence of obstructive sleep apnea is significantly elevated in patients with multiple sclerosis. He stated that if untreated, patients with multiple sclerosis and obstructive sleep apnea suffer from increasing levels of daytime fatigue and cognitive dysfunction. Further, such patients are also at risk of hypertension and heart disease if untreated. In April 2018, the doctor opined that the Veteran’s “multiple sclerosis played a role in his difficulties with sleep apnea which, in turn, worsened his underlying cardiomyopathy.” In March 2017 the Veteran’s private cardiologist opined that the Veteran’s “obstructive sleep apnea did contribute to his congestive heart failure.” The doctor further stated that “The multiple sclerosis contributed to his obstructive sleep apnea. It is reasonable to believe that these conditions, multiple sclerosis and sleep apnea, did worsen his congestive heart failure.” In March 2017 the Veteran underwent a VA heart examination. The examiner opined that the Veteran’s heart condition, including myocardial infarction, status post stent and implantable cardioverter-defibrillator placement; ischemic cardiomyopathy; and nonischemic cardiomyopathy, was not proximately due to or the result of sleep apnea. The examiner noted that the American Heart Association article submitted by the Veteran states that there is a possible association between obstructive sleep apnea and congestive heart failure but more research is required to determine basic mechanisms by which obstructive sleep apnea exerts its adverse effects on the cardiovascular system. In June 2017 the VA examiner provided an addendum opinion. The examiner opined that the Veteran’s claimed heart failure and coronary artery disease were not proximately caused by or otherwise aggravated by his sleep apnea. The doctor stated that obstructive sleep apnea does not cause ischemic heart disease. Rather, ischemic heart disease is caused by coronary obstruction. Congestive heart failure is due to impaired cardiac muscle contraction. He stated that there is no general medical consensus or evidence-based opinion to support the claim that obstructive sleep apnea caused the Veteran’s ischemic heart disease and congestive heart failure. In a July 2017 addendum the doctor further stated: “Although the Veteran’s physicians and the nurse practitioner have provided their opinion with regard to congestive heart failure and its relationship (if any) to obstructive sleep apnea, they have not provided evidence based literature to substantiate their statement. There is no evidence based medical literature that supports the claim that congestive heart failure is caused by or result of and/or aggravated beyond its natural course due to obstructive sleep apnea.” The Board acknowledges the opinion of the VA examiner, particularly that the relationship between obstructive sleep apnea and heart failure is not completely understood. And while he may also be correct that there is not a complete medical consensus as to the issue, based on the medical opinion evidence provided in this case, the Board finds that the opinions are at least in equipoise. Here, the Veteran’s cardiologist and private doctors treating his multiple sclerosis and obstructive sleep apnea, have all opined that the Veteran’s obstructive sleep apnea contributed to his cardiac condition. The American Heart Association article discusses the series of mechanical, hemodynamic, chemical, neural, and inflammatory responses with adverse consequences for the cardiovascular system caused by obstructive apneas during sleep. The Board finds that giving the Appellant the benefit of the doubt, the claim for service connection for a heart disability should be granted. 2. Entitlement to service connection for osteomyelitis The September 2015 VA heart examination notes that the Veteran had two myocardial infarctions in 2012 and despite treatment went into congestive heart failure in 2013. In 2014 a left ventricular assist device was placed, which subsequently became infected, and he had hematogenous spread to his thoracic spine, resulting in osteomyelitis. Therefore, as the Board has found the Veteran’s heart disability should be service-connected, and the evidence reflects that the osteomyelitis is secondary to treatment of his heart condition, osteomyelitis should also be service-connected. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). 3. Entitlement to a rating in excess of 20 percent for optic neuritis The Veteran currently has a 20 percent rating for optic neuritis under Diagnostic Code 6026-6080. Pursuant to 38 C.F.R. § 4.79, Diagnostic Code 6026, optic neuropathy is evaluated based on visual impairment. Visual impairment is based on impairment of visual acuity excluding development errors of refraction, visual field, and muscle function. Under Diagnostic Code 6080 with respect to visual field defects, concentric contraction to 5 degrees bilaterally yields a 100 percent evaluation, or 30 percent if unilateral. Concentric contraction to 15 degrees but not to 5 degrees bilaterally warrants a 70 percent rating, and 20 percent if unilateral. Concentric contraction to 30 degrees, but not to 15 degrees warrants a 50 percent rating if bilateral, and a 10 percent rating if unilateral. Concentric contraction to 45 degrees but not to 30 yields a 30 percent rating if bilateral, and 10 percent if unilateral. Finally, concentric contraction to 60 degrees but not to 45 degrees warrants a 10 percent rating if bilateral, and a 10 percent rating if unilateral. VA eye examination in August 2012 showed the Veteran to have left eye average contraction to 4 degrees and right eye average contraction to 0 degrees. The examiner stated that it is not possible to determine the exact amount of vision loss caused by the Veteran’s optic neuropathy due to the advanced stage of his glaucoma. He estimated that the Veteran’s vision loss was 80 percent due to glaucoma and 20 percent due to optic neuropathy. In a March 2013 letter to the VA, the Veteran’s private eye doctor stated that the Veteran has significant visual field loss and optic nerve damage from glaucoma and optic neuritis. He stated that it is hard to determine the percentages, but that optic neuritis may be responsible for up to 80 percent of the loss. Thus, while the evidence clearly supports that both the Veteran’s nonservice-connected glaucoma and his service-connected optic neuritis have contributed to his visual loss, it is much less clear the contribution of each. The August 2012 VA examiner stated that it would not be possible to determine the exact amount of vision loss due to each, although he then provided a percentage estimate with no explanation as to how he reached the estimate. The Veteran’s private doctor also agreed it would be hard to determine a percentage, and then suggested his own estimate without explanation. Further, neither specified whether the estimated loss related only to visual field loss, and if so a particular part of the visual field, nor whether their estimates pertained equally to both eyes. When it is not possible to separate the effects of the service-connected disability from nonservice-connected conditions, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Therefore, giving the Appellant the benefit of the doubt, for purposes of this decision, the Veteran’s visual loss will be considered to be related solely to his service-connected optic neuritis. As such, the Board finds that a 100 percent rating for optic neuritis is warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Christensen