Citation Nr: 20075868 Decision Date: 11/27/20 Archive Date: 11/27/20 DOCKET NO. 16-55 056 DATE: November 27, 2020 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for residuals of a stroke, to include as secondary to coronary artery disease (CAD), is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. The Veteran contends that he is entitled to service connection for sleep apnea, as the condition is due to his service-connected disabilities. The record reflects that he has not yet been afforded a VA examination in relation to his claim. Under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. The record shows that the Veteran has a current diagnosis of obstructive sleep apnea (OSA), including in a July 2013 private sleep study. Additionally, he submitted multiple articles in November 2019 that indicated there was a relationship between OSA and diabetes mellitus, type II. As the record does not contain a competent medical opinion regarding the etiology of the Veteran’s sleep apnea, remand is necessary so that he can be afforded a VA examination in association with his claim. 2. Entitlement to service connection for residuals of a stroke, to include as secondary to CAD, is remanded. The Veteran contends that he is entitled to service connection for residuals of a stroke, as the condition is due to his CAD. The record reflects that he was afforded a VA examination regarding his claim in October 2016; however, the Board finds that the examiner failed to adequately address all relevant evidence of record in providing a negative nexus opinion. In the October 2016 examination, the examiner noted that the Veteran experienced an acute right temporal parietal ischemic infarction in February 2011. The examiner documented that a November 2011 cardiology note stated that he had no previous history of cardiac disease, and that he had a heart catherization in September 2012 that showed moderate plaquing of the left anterior descending artery, 50 percent mid stenosis in the right coronary artery, and borderline hypokinesis of the inferior region at 58 percent. The examiner concluded that it was less likely than not that the Veteran’s stroke was proximately due to or the result of his CAD. The examiner stated that he had an ischemic stroke in February 2011, but had no history of heart disease at that time. The examiner noted that he was diagnosed with heart disease in September 2012, and that his stroke was, “prior to his heart disease.” The examiner elaborated that at the time he was diagnosed with the stroke, he was also found to have hypertension and hyperlipidemia, which could lead to a stroke. A February 2011 private transthoracic echocardiogram report noted that the Veteran had an estimate left ventricular ejection fraction (LVEF) of 55 to 60 percent. The study also showed trace aortic regurgitation, trace mitral regurgitation, and trace tricuspid regurgitation. The examining physician documented that global left ventricular wall motion and contractility were within normal limits, and that there was normal left ventricular systolic function. The physician noted that the left and right ventricular and atrial chambers were normal in size, but indicated that there was mild dilation of the ascending aorta. The physician stated that the main pulmonary artery and inferior vena cava were not well visualized. A February 2011 private treatment record noted that the Veteran’s heart revealed a systolic murmur at the apex. In a November 2011 private treatment record, the treating clinician noted that the Veteran was referred for a cardiovascular evaluation and treatment. He reported that, over the years, he had been experiencing shortness of breath. The clinician indicated that he had no previous history of cardiovascular disease, and documented that he was negative for palpitations, chest pain, orthopnea, paroxysmal nocturnal dyspnea (PND), peripheral edema, syncope, and claudication. The clinician stated that he had a normal cardiac rhythm, with a grade 2/6 early systolic murmur. The clinician concluded that the Veteran should undergo a stress test with myocardial perfusion images. The clinician noted that, “[t]here [wa]s no question that a major portion of [strokes such as the one that the Veteran experienced] are of cardiac origins. After undergoing a December 2011 private Lexiscan sestamibi SPECT study, the examining physician concluded that the Veteran had evidence of a previous inferoapical infarct, of some posterolateral injury, and of moderate hypokinesis of the inferoapical and lateral regions. His LVEF was measured at 43 percent. The physician listed an impression of evidence of moderate infarct involving the inferoapical region, with mild infarct of the posterolateral region and ischemic cardiomyopathy. In a December 2011 private echocardiogram report, the examining physician concluded that the Veteran had a dilated left atrium, mild aortic insufficiency, mild pulmonary hypertension, and borderline left ventricular systolic function at 52 percent. In a December 2011 private bilateral carotid doppler study report, the examining physician concluded that the Veteran had moderate diffuse atherosclerosis, but no significant stenosis of the carotid vertebral system bilaterally. In a January 2012 private treatment record, the treating clinician listed a current diagnosis of CAD of the native vessel. The clinician noted that a stress test demonstrated previous injury involving the inferoapical region, and a mild peri-infarct ischemia. The clinician indicated that he had no major symptoms at that point and he elected to continue with conservative treatment unless symptoms arose. In a September 2012 private treatment record, the treating clinician stated that the Veteran had returned for a follow-up, and reported complaints of shortness of breath, even when sitting down. The clinician indicated that he had multiple premature ventricular complexes (PVCs) on examination and an abnormal stress test. The clinician recommended that the Veteran undergo a left heart catheterization based on his symptoms. In a September 2012 private catheterization report, the examining physician concluded that the Veteran had moderate plaquing of the left anterior descending artery, a 50 percent mid-stenosis in the right coronary artery, and borderline hypokinesis of the inferior region at 58 percent. In a September 2015 statement, the Veteran’s private physician stated that, based on his cardiology records, his stroke could possibly have been related to his CAD. In a November 2016 disability benefits questionnaire (DBQ), the Veteran’s private physician indicated that his cardiac disease was incidentally noted when he was evaluated for a stroke in 2011. The physician documented that he had a myocardial infarction in 2011, but the specific date was not known. Accordingly, the evidence of record indicates that the Veteran was diagnosed with cardiac disease prior to his September 2012 heart catheterization, and that he had evidence of a previous myocardial infarction as early as December 2011. The October 2016 examiner failed to discuss the relevant evidence of record indicating that the Veteran had heart disease prior to September 2012, which renders the examiner’s opinion inadequate. Therefore, the Agency of Original Jurisdiction (AOJ) should obtain a new medical opinion on remand which adequately addresses all relevant evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 3. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity and for diabetic peripheral neuropathy of the right lower extremity are remanded. The Veteran contends that he is entitled to service connection for diabetic peripheral neuropathy of the left lower extremity and for diabetic peripheral neuropathy of the right lower extremity, as the conditions are due to his service-connected diabetes mellitus, type II. The record indicates that he was afforded a VA examination regarding his claims in March 2018; however, relevant evidence has been associated with the claims file since that examination which must be addressed. In a March 2018 VA podiatry note, the Veteran reported burning and tingling in his feet. The treating clinician stated that neuropathy could not be ruled out. In a September 2018 VA telephone encounter note, the Veteran’s daughter stated that he had neuropathy, but the diagnosis was nowhere in his chart. She indicated that the diagnosis needed to be listed due to an appeal for service connection. In a subsequent September 2018 VA nursing note, the treating clinician stated that the Veteran had diabetes mellitus with peripheral neuropathy, and noted that he was seen at the podiatry clinic. The clinician indicated that neuropathy had not been previously entered into his problem list since he was new to the clinician and neuropathy was not discussed. The clinician stated that diabetic neuropathy had been added to his problem list. In a September 2019 VA tele-medicine note, the Veteran stated that he experienced lower extremity pain that was worse at night. The treating clinician assessed him with bilateral lower extremity neuropathy, and noted that since he had a history of CAD, he likely had blockages of the arteries of his lower ankles. Accordingly, the evidence of record indicates that the Veteran has diagnoses of neuropathy of his bilateral lower extremities; however, the evidence is unclear as to the underlying cause of his neuropathy. The September 2018 VA nursing note indicates that he has diabetic neuropathy, but it is not apparent whether the diagnosis is based on an examination of the Veteran and/or review of his medical records, or, alternatively, that it was listed solely due to the suggestion of the Veteran’s daughter. Additionally, the September 2019 record indicates that his neuropathy may be associated with cardiovascular blockages in his ankles. Therefore, a new examination is necessary on remand to clarify the nature and etiology of the Veteran’s bilateral lower extremity neuropathy. 4. Entitlement to a TDIU is remanded. The Veteran contends that he is entitled to a TDIU, as his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. The record reflects that he has a 100 percent evaluation for his CAD, effective April 16, 2019. The Board notes that a TDIU is considered a lesser benefit than a 100 percent rating, and the award of a 100 percent rating generally renders the issue of entitlement to a TDIU moot for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran is already rated as 100 percent disabled for a single disability, and the record does not otherwise reflect that he has asserted total disability due to any other single condition. However, the Board notes that the Veteran’s claim for entitlement to a TDIU was received by VA in 2014, and therefore the period under consideration extends beyond the date that he was assigned a 100 percent rating. Thus, the issue of entitlement to a TDIU is still on appeal for the period prior to April 16, 2019. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. A total disability rating may be assigned where the combined rating for the Veteran’s service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of defining a disability of either 60 percent or 40 percent under 38 C.F.R. § 4.16(a), the following will be considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single incident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple injuries incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). The record indicates that the Veteran was assigned a 60 percent rating for his CAD, effective July 22, 2013, and that he was assigned a 20 percent rating for his diabetes mellitus, type II, effective January 31, 2017. Therefore, he meets the schedular criteria for entitlement to a TDIU during the entire relevant period. The Board notes that disabilities which are currently on appeal for service connection could impact the outcome of a decision on the issue of entitlement to a TDIU for the period prior to April 16, 2019. Therefore, the issue is inextricably intertwined with the issues being remanded herein, and consequently must also be remanded pending further development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. After any newly obtained evidence has been associated with the claims file, the AOJ should obtain a medical opinion from an appropriately qualified examiner to determine the nature and etiology of the Veteran’s sleep apnea. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. If deemed appropriate, the examiner should contact the Veteran for additional information or examination. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sleep apnea is related to his military service, to include as being due to or aggravated by a service-connected disability. The examiner should specifically discuss the articles submitted by the Veteran discussing the relationship between diabetes mellitus, type II, and sleep apnea. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. After associating any newly obtained evidence with the claims file, provide a copy of the file, including a copy of this remand, to an appropriately qualified examiner for an opinion regarding the nature and etiology of the Veteran’s residuals of a stroke. The examiner should review the entire claims file and should indicate that such review was completed in the opinion report. If deemed appropriate, the examiner should contact the Veteran for additional information or examination. The examiner is asked to provide an addendum opinion to the October 2016 opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s 2011 stroke, with any associated residuals, was related to his active duty military service, to include as due to or aggravated by a service-connected disability. In providing the requested opinion, the examiner should consider all relevant evidence of record, including both medical and lay evidence, citing to specific evidence where appropriate. The examiner should specifically discuss the Veteran’s private treatment records documenting treatment for his stroke residuals and for treatment and testing related to cardiac disease prior to his September 2012 heart catheterization. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After any newly obtained evidence has been associated with the claims file, schedule the Veteran for an examination with an appropriately qualified examiner to determine the nature and etiology of any currently diagnosed neurologic condition of the lower extremities. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed neurologic condition of the lower extremities is related to the Veteran’s military service, to include as being due to or aggravated by a service-connected disability. The examiner should specifically discuss the records detailed above that are related to his diabetic and cardiovascular symptoms. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran’s statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, Associate Counsel 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.