Citation Nr: 20003441 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 19-10 947 DATE: January 15, 2020 ORDER The claim of entitlement to service connection for diabetes mellitus is reopened. Service connection for hypertension is denied. Service connection for a kidney condition is denied. Service connection for type two diabetes mellitus is denied. Service connection for a right hip disability is denied. Service connection for a left hip disability is denied. Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. An increased rating of 30 percent for chronic bronchitis is granted. A rating in excess of 30 percent for limited motion of the right shoulder is denied. A separate rating of 20 percent for recurrent dislocation of the right shoulder is granted. A rating in excess of 40 percent for a low back disability is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. A claim for service connection for diabetes mellitus was initially denied in an April 2007 rating decision. The Veteran was notified of the denial but neither appealed nor submitted additional evidence within one year of the decision, and it became final. Evidence received since the April 2007 rating decision relates to prior unestablished facts. 2. The Veteran’s hypertension neither had its onset in nor is it otherwise related to his active duty service. See, e.g., Service Treatment Records (STRs) dated June 1972, February 1981, October 1986, May 1989 (noting elevated blood pressure not meeting the definition of hypertension for VA purposes); December 2018 VA Examination. 3. There is no evidence throughout the claim period of a kidney disability. See, e.g., June 2003 Private Treatment Record (PTR) (noting “normal renal function”). 4. The Veteran’s type two diabetes mellitus neither had its onset in nor is otherwise related to his active duty service, to include as secondary to in-service exposure to asbestos. See February 1980 STR (Veteran reported no asbestos exposure); See also “Patient Education: Asbestos Exposure (The Basics),” UpToDate.com. 5. There is no evidence throughout the claim period of a right or left hip disability. See, e.g., December 2010 PTR (noting normal hip movement). 6. The Veteran’s right and left knee disabilities neither had their onset in nor are they otherwise related to his active duty service. See STRs dated June 1972 to April 1992 (silent for mention of a knee injury). 7. Throughout the claim period, the Veteran’s chronic bronchitis has been characterized by a forced expiratory volume in one second (FEV-1) of 66 percent, post-bronchodilator. See June 2016 VA Examination. 8. Throughout the claim period, the Veteran’s right shoulder disability has been manifested by motion of the arm limited to no more than shoulder level. See June 2016 VA Examination. 9. Throughout the claim period, the Veteran’s right shoulder disability has manifested in infrequent recurrent dislocation at the scapulohumeral joint. See June 2016 VA Examination. 10. Throughout the claim period, the Veteran’s spine disability has been manifested by no more than flexion limited to 70 degrees, extension to 25 degrees, and right and left lateral flexion and rotation to 30 degrees each. There is no evidence of guarding or muscle spasm resulting in abnormal gait or spinal contour, ankylosis, or intervertebral disc syndrome (IVDS) with any incapacitating episodes. See June 2016 VA Examination. CONCLUSIONS OF LAW 1. The April 2007 rating decision is final, and new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a kidney condition are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for type two diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 8. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 9. The criteria for an increased rating of 30 percent for chronic bronchitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6600. 10. The criteria for a rating in excess of 30 percent for limited motion of the right shoulder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 11. The criteria for a separate rating of 20 percent for recurrent dislocation of the right shoulder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5202. 12. The criteria for a rating in excess of 40 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 1972 to September 1978 and from March 1981 to October 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Hypertension Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has a current diagnosis of hypertension, satisfying the first element of service connection. See December 2018 VA Examination. However, the Board finds that the Veteran’s current hypertension neither had its onset in nor is otherwise related to his active duty service. In the first place, the Veteran’s STRs do not reflect a diagnosis of hypertension in service. Although his STRs do reflect several findings of elevated blood pressure, for VA purposes a diagnosis of hypertension requires two or more blood pressure readings taken on at least three different days. See 38 C.F.R. § 4.104, Note (1). No such diagnosis was made during the Veteran’s service. See, e.g., STRs dated June 1972, February 1981, October 1986, February 1987, October 1988, January 1989, May 1989 (recording elevated blood pressures taken on a single day, without diagnosis of hypertension). In addition, although the Veteran’s in-service blood pressure readings yielded average systolic pressure in the 120s or 130s and average diastolic pressure in the 80s, for VA purposes hypertension means systolic pressure predominantly 160 or greater or diastolic pressure predominantly 90 or greater. See December 2018 VA Examination (noting in-service blood pressure reading averages). Furthermore, a December 2018 VA examination concluded that the Veteran’s current hypertension was not related to his in-service elevated blood pressure, because his blood pressure was consistent throughout his service, and he was only diagnosed with hypertension six years after his separation. The opinion of the December 2018 VA examiner is competent, credible, and entitled to significant weight. Moreover, there is no evidence to the contrary. Therefore, in light of the absence of a diagnosis of hypertension in-service and affording significant weight to the negative opinion of the VA examination, the Board finds that the Veteran’s hypertension neither had its onset in nor is otherwise related to his active duty service. Accordingly, service connection for hypertension is not warranted. 2. A Kidney Condition As noted above, in order to prove service connection, there must first be competent, credible evidence of a current disability. The record, including both medical and lay evidence, contains no evidence of a kidney condition. See, e.g., June 2003 Private Treatment Record (PTR) (noting “normal renal function”). Although the Veteran has been prescribed medication for “renal protection,” his records are completely silent for any renal diagnosis. See June 2005 VA Treatment Record (VATR) (5mg fosinopril prescribed for renal protection). Therefore, the Board finds that the Veteran has no current kidney disability. Accordingly, service connection for a kidney disability is not warranted. 3. Type Two Diabetes Mellitus New and Material Evidence Generally, when a claim of entitlement to service connection is denied and the veteran fails to appeal or submit new evidence within a year of the denial, the decision becomes final and the claim can be reopened only if the veteran submits new and material evidence. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence is evidence that, alone or together with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The Veteran’s claim for service connection for type two diabetes mellitus was previously denied in an April 2007 rating decision for lack of an in-service event or injury related to his current disability. The Veteran failed to appeal, no new evidence was submitted within a year of the rating decision, and the decision became final. In April 2016, STRs were added to the Veteran’s claim file which included a February 1980 Asbestos Medical Surveillance Questionnaire filled out by the Veteran. As discussed below, the Veteran contends that his current diabetes was caused by his in-service exposure to asbestos. Therefore, this evidence is new and material, since it relates to the issue of an in-service event or injury related to the Veteran’s current disability, an unestablished fact necessary to substantiate the claim. As such, the Board finds that new and material evidence has been received, and the claim is reopened. Entitlement to Service Connection The Veteran has a current diagnosis of type two diabetes mellitus. See April 2016 VATR. He contends that his diabetes was caused by his in-service exposure to asbestos. However, there is no competent evidence of any medical relationship between asbestos exposure and the subsequent development of diabetes. See, e.g., “Patient Education: Asbestos Exposure (The Basics),” UpToDate.com (listing asbestosis, cancer, and pleural problems as problems caused by exposure to asbestos; diabetes not listed). Moreover, in a February 1980 questionnaire, the Veteran reported no in-service exposure to asbestos. The Veteran has not reported any other link between his diabetes and his active duty service. Because there is no competent evidence of a nexus between the Veteran’s diabetes and his service, VA has no duty to provide a VA examination in this case. See Waters v. Shinseki, 601 F.3d 1274, 1276-77 (2010) (VA has no duty to provide an examination when there is no competent evidence of a nexus between a current disability and an in-service injury, disease, or event). In light of the above, Board finds that the Veteran’s diabetes neither had its onset in nor is otherwise related to his active duty service, to include as secondary to asbestos exposure. Accordingly, service connection for type two diabetes mellitus is not warranted. 4. Right and Left Hip Disabilities As noted above, in order to prove service connection, there must first be competent, credible evidence of a current disability. The record, including both medical and lay evidence, contains no evidence of a hip condition. See, e.g., December 2010 PTR (noting normal hip movement). Therefore, the Board finds that the Veteran has no current right or left hip disability. Accordingly, service connection for right and left hip disabilities is not warranted. 5. Right and Left Knees The Veteran has a current diagnosis of bilateral knee degenerative joint disease. See November 2015 VATR. However, the Veteran’s STRs contain no record of any knee complaint, treatment, or diagnosis. Nor has the Veteran reported any particular in-service event or injury related to his current knee conditions. Because there is no competent evidence of a nexus between the Veteran’s knee disabilities and his service, VA has no duty to provide a VA examination in this case. See Waters v. Shinseki, 601 F.3d 1274, 1276-77 (2010). Therefore, the Board finds that the Veteran’s bilateral knee disabilities neither had their onset in nor are otherwise related to his active duty service. Accordingly, service connection for right and left knee disabilities is not warranted. Increased Rating 6. Chronic Bronchitis The Veteran’s chronic bronchitis is currently rated as 10 percent disabling under Diagnostic Code (DC) 6600. See 38 C.F.R. § 4.96. Under this code, a rating in excess of 10 percent requires either an FEV-1 of less than 70 percent, a ratio of FEV-1 to forced vital capacity (FVC) of less than 70 percent, or a diffusion capacity of the lung for carbon monoxide (DLCO) of less than 65 percent predicted. The Veteran has been afforded one VA examination on this claim during the claim period, in June 2016. The examination yielded the following findings: FEV-1: 66 percent FEV-1/FVC: 110 percent DLCO: 76 percent As the Veteran has an FEV-1 of less than 70 percent, an increased rating of 30 percent is warranted for chronic bronchitis. A rating in excess of 30 percent requires an FEV-1 of less than 55 percent, a ratio of FEV-1 to FVC of less than 55 percent, a DLCO of less than 55 percent, or maximum oxygen consumption of less than 20 ml/kg/min. There is no evidence throughout the claim period of an FEV-1 of less than 66 percent, a ratio of FEV-1 to FVC of less than 110 percent, or a DLCO of less than 76 percent. Nor is there any evidence of a maximum oxygen consumption less than 20 ml/kg/min. Therefore, the Board finds that the Veteran’s chronic bronchitis has been manifested by no more than an FEV-1 of less than 70 percent throughout the claim period. Accordingly, a rating in excess of 30 percent is not warranted. 7. Right Shoulder Disability Limitation of Motion The Veteran’s right shoulder disability is currently rated as 30 percent disabling under DC 5201, for motion of the dominant arm limited to midway between the side and shoulder level. See 38 C.F.R. § 4.71a. He has been afforded one VA examination during the claim period, in June 2016. That examination yielded findings of flexion limited to 100 degrees (above shoulder level) and abduction limited to 90 degrees (shoulder level). The findings of the VA examination are competent, credible, and entitled to significant weight. Moreover, there is no evidence throughout the claim period to the contrary. Therefore, the Board finds that the Veteran’s right shoulder disability has manifested throughout the claim period in no more than motion of the dominant arm limited to the shoulder level. Accordingly, a rating in excess of 30 percent is not warranted. Recurrent Dislocation Under DC 5202, a compensable rating may also be warranted for a shoulder disability with impairment of the humerus and recurrent episodes of dislocation of the scapulohumeral joint. A 20 percent rating is warranted for infrequent episodes and guarding of movement only at the shoulder level. A 30 percent rating is warranted for frequent episodes and guarding of all arm movements. 38 C.F.R. § 4.71a. The June 2016 VA examination yielded findings of infrequent recurrent episodes of dislocation of the glenohumeral joint. The examination made no finding as to guarding of the shoulder or arm. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s right shoulder disability has been manifested by infrequent recurrent episodes of dislocation of the glenohumeral joint throughout the claim period. See 38 C.F.R. § 4.3. Accordingly, a separate rating of 20 percent is warranted. However, because there is no evidence of frequent recurrent episodes of dislocation of the glenohumeral joint with guarding of all arm movements, a rating in excess of 20 percent is not warranted. 8. Low Back Disability The Veteran’s low back disability has been rated as 40 percent disabling for more than twenty years—since 1995—and therefore may not be reduced below that rating. See 38 C.F.R. § 3.951. The Veteran was originally awarded a 40 percent rating in a February 1995 rating decision, under the then-current version of 38 C.F.R. § 4.71a, DC 5292, which provided a 40 percent rating for severe limitation of motion of the lumbar spine. As explained in detail below, the Board finds that an increased rating is not warranted under the current version of the rating schedule, even considering a combined rating including separate compensable ratings for bilateral lower extremity radiculopathy. Therefore, the Board leaves the Veteran’s protected 40 percent rating, assigned under the 1995 version of the rating schedule, undisturbed. The Veteran has been afforded one VA examination on this claim throughout the claim period, in June 2016. The examination yielded findings of flexion limited to 70 degrees, extension limited to 25 degrees, and right and left lateral flexion and rotation limited to 30 degrees each. The examiner also noted painful motion on all movements. Under the current version of 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, a rating of 10 percent for the thoracolumbar spine is warranted for flexion limited to between 60 and 85 degrees. A rating in excess of 10 percent requires either flexion limited to 60 degrees or less, a combined range of motion of limited to 120 degrees, muscle spasm or guarding resulting in abnormal gait or spinal contour, or ankylosis of the thoracolumbar spine. A rating in excess of 10 percent may also be awarded for IVDS with incapacitating episodes having a total duration of more than two weeks in the past twelve months. The Veteran’s combined range of motion of the thoracolumbar spine as reflected in the June 2016 VA examination is 215 degrees. The examiner noted muscle spasms not resulting in abnormal gait or spinal contour, no guarding, and no ankylosis. The examiner also noted IVDS, but without any incapacitating episodes. Therefore, under the current version of the rating schedule, a rating in excess of 10 percent is not warranted. However, The June 2016 VA examination also noted signs and symptoms of bilateral lower extremity radiculopathy. The examiner noted severe intermittent pain and paresthesias or dysesthesias of the right lower extremity. The Veteran also reported a history of shooting pains in the left lower extremity and bilateral numbness. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provides that any objective neurologic abnormalities associated with a spine disability shall be rated separately under an appropriate diagnostic code. DC 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve, and a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. Under the combined ratings table, three ratings of 10, 10, and 20 percent equal a combined rating of 40 percent. Therefore, if the Veteran were awarded ratings of 10 percent for limitation of motion of the thoracolumbar spine, 10 percent for left lower extremity radiculopathy, and 20 percent for right lower extremity radiculopathy, his combined rating would be only 40 percent. In other words, the current regulatory criteria do not allow for a rating higher than the already assigned 40 percent. Accordingly, the Board finds that an increased rating is not warranted under the current version of the rating schedule, even including separate compensable ratings for bilateral lower extremity radiculopathy. Therefore, the Board leaves the Veteran’s protected 40 percent rating, assigned under the 1995 version of the rating schedule, undisturbed. REASONS FOR REMAND 1. Entitlement to Service Connection for OSA VA must provide a VA medical examination when there is evidence of a disability that may be associated with an in-service event, injury, or disease, but the competent medical evidence of record is insufficient to adjudicate the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has a current diagnosis of OSA. See August 2019 Private Examination. He has not been afforded a VA examination and opinion on this claim; however, an August 2019 private examination concluded that the Veteran’s OSA was related to his active duty service. Unfortunately, the Board finds that the rationale provided by the private examiner in support of this conclusion is inadequate. The examiner concluded that the Veteran’s service-connected right shoulder disability, chronic bronchitis, maxillary sinusitis, and left nasal polyp “aided in the development of/permanently aggravated” his OSA, in light of research supporting an association between chronic pain and “sleep disturbances” or “disrupted sleep.” The examiner provided no direct evidence of any association between the Veteran’s service-connected conditions and OSA itself. Because the opinion of the August 2019 private examiner is inadequate, the Board finds that the competent medical evidence of record is insufficient to adjudicate the claim. Accordingly, a remand is necessary to provide that Veteran a VA examination and opinion in support of this claim. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination and opinion on his claim for service connection for obstructive sleep apnea (OSA). Upon thorough review of the claims file and physical examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s current OSA had its onset in or is otherwise related to his active duty service? (b.) Is it at least as likely as not that the Veteran’s current OSA was either 1) caused or 2) aggravated by his service-connected right shoulder disability, chronic bronchitis, maxillary sinusitis, or left nasal polyp? The examiner must provide a fully articulated medical rational for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.