Citation Nr: 20026050 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 15-31 905 DATE: April 15, 2020 ORDER Entitlement to a compensable rating for bilateral hearing loss disability has been withdrawn. Entitlement to a rating in excess of 10 percent for right knee disability has been withdrawn. Entitlement to a rating in excess of 10 percent for left knee disability has been withdrawn. Entitlement to initial rating in excess of 10 percent for left lower extremity radiculopathy disability has been withdrawn. Entitlement to a rating in excess of 20 percent for lumbar spine disability has been withdrawn. Entitlement to a rating in excess of 10 percent prior to September 30, 2015, and thereafter, in excess of 20 percent for cervical spine disability has been withdrawn. Entitlement to a rating in excess of 10 percent prior to September 30, 2015, and thereafter, in excess of 20 percent for left shoulder disability has been withdrawn. Entitlement to a rating in excess of 20 percent for gastroesophageal reflux disorder (GERD) disability has been withdrawn. Entitlement to service connection for neurologic involvement right upper extremity (claimed as right arm, hand, and fingers) has been withdrawn. Entitlement to a rating in excess of 10 percent for hypertension disability is denied. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. During the October 2019 Board hearing, the Veteran expressed his desire to withdraw his appeal of the claims for entitlement to increased ratings for bilateral hearing loss, right knee, left knee, lumbar spine, cervical spine, left lower extremity radiculopathy, left shoulder and GERD disabilities, and his claim for entitlement to service connection for neurologic involvement in right upper extremity. 2. The Veteran’s hypertension is manifested by the need for continuous mediation and has not resulted in diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 3. Resolving reasonable doubt in the Veteran’s favor, his obstructive sleep apnea began during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a compensable rating for bilateral hearing loss disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of entitlement to service connection for neurologic impairment in the right lower extremity (claimed as right leg, foot, and toes) by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for right knee disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of entitlement to a rating in excess of 10 percent for left knee disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for withdrawal of entitlement to initial rating in excess of 10 percent for left lower extremity radiculopathy disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 6. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for lumbar spine disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 7. The criteria for withdrawal of entitlement to a rating in excess of 10 percent prior to September 30, 2015, and thereafter, in excess of 20 percent for cervical spine disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 8. The criteria for withdrawal of entitlement to a rating in excess of 10 percent prior to September 30, 2015, and thereafter, in excess of 20 percent for left shoulder disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 9. The criteria for withdrawal of entitlement to a rating in excess of 20 percent for GERD disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 10. The criteria for withdrawal of entitlement to service connection for neurologic involvement right upper extremity (claimed as right arm, hand, and fingers) by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 11. The criteria for entitlement to a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. 12. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1975 to June 1995. The Board notes that the RO did not issue a statement of the case (SOC) as to the issue of entitlement to service connection for sleep apnea following the timely notice of disagreement. Nonetheless, the RO certified that issue to the Board, and thereafter the Board has identified the issue at a hearing and took testimony on the issue. The Board accepts jurisdiction of this issue, and it is currently on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) Withdrawal of Appeals 1. Entitlement to a compensable rating for bilateral hearing loss disability 2. Entitlement to a rating in excess of 10 percent for right knee disability 3. Entitlement to a rating in excess of 10 percent for left knee disability 4. Entitlement to initial rating in excess of 10 percent for left lower extremity radiculopathy disability 5. Entitlement to a rating in excess of 20 percent for lumbar spine disability 6. Entitlement to a rating in excess of 10 percent prior to September 30, 2015, and thereafter, in excess of 20 percent for cervical spine disability 7. Entitlement to a rating in excess of 10 percent prior to September 30, 2015, and thereafter, in excess of 20 percent for left shoulder disability 8. Entitlement to a rating in excess of 20 percent for GERD disability 9. Entitlement to service connection for neurologic involvement right upper extremity (claimed as left arm, hand, and fingers) A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (c); see also DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204 (b) (1). During his October 2019 Board hearing, the Veteran’s stated his desire to withdraw his pending appeal of the claims for entitlement to increased ratings for bilateral hearing loss, right knee, left knee, lumbar spine, cervical spine, left lower extremity radiculopathy, left shoulder and GERD disabilities, and his claim for entitlement to service connection for neurologic involvement in right upper extremity. Accordingly, the Board finds that the Veteran’s testimony satisfies the requirements for the withdrawal of a substantive appeal as to those claims. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204 (b)(3). Hence, there remain no allegations of errors of fact or law for appellate consideration at this time. Accordingly, the Board does not have jurisdiction to review the appeal, and the claims for entitlement to increased ratings for bilateral hearing loss, right knee, left knee, lumbar spine, cervical spine, left lower extremity radiculopathy, left shoulder and GERD disabilities, and his claim for entitlement to service connection for neurologic involvement in right upper extremity are dismissed. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, the evidence does not support staged ratings for the disability on appeal. 10. Entitlement to a rating in excess of 10 percent for hypertension disability The Veteran seeks a higher rating for his hypertension disability. He contends that his disability is more severe than reflected by the current assigned rating. The Veteran’s hypertension disability is currently rated as 10 percent disabling under Diagnostic Code 7101 for hypertensive vascular disease. Under Diagnostic Code 7101 a 10 percent disability rating is provided for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104. Initially, the Board notes that the Veteran’s hypertension disability has been treated with medication throughout the pendency of the appeal. This consistent with the current 10 percent rating assigned for this disability. However, at no point during the pendency of the appeal has the Veteran’s hypertension disability been manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more to warrant a rating in excess of 10 percent. See 38 C.F.R. § 4.104, Diagnostic Code 7101. A March 2010 VA hypertension examination report shows the VA examiner recorded the Veteran’s blood pressure readings as 160/100, 160/100, and 160/100, and it was noted that the Veteran needed more medication to control his blood pressure. The Veteran’s blood pressure reading at his August 2015 VA hypertension examination were 124/69, 126/72, and 117/57. A review of the Veteran’s VA treatment records dated from September 2009 to March 2018 contain multiple blood pressure readings, and these records do not reflect diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. The Board acknowledges that the Veteran’s hypertension disability has not been evaluated by VA since 2015; however, the medical evidence does not suggest, nor has the Veteran asserted, that his hypertension has worsened since that time. Rather, during the October 2019 Board hearing, the Veteran testified that his hypertension disability has remained the same. As such, the Board finds that remand for updated VA examinations is not necessary and would only serve to delay this matter with no benefit to the Veteran. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time is not a basis for requiring a new examination). Thus, the Veteran’s hypertension does not meet or nearly approximate the criteria of predominantly 110 or more diastolic. Moreover, it does not appear there were any readings of systolic pressure being 200 or more during the pendency of this case. As such, the criteria for a rating in excess of 10 percent for hypertension disability are not met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 11. Entitlement to service connection for obstructive sleep apnea The Veteran seeks entitlement to service connection for obstructive sleep apnea. He contends that his current sleep apnea had an onset during his period of service when he experienced symptoms of snoring and shortness of breath during sleep. He further reports that he continued to experience similar symptomatology since his period of service which has been subsequently diagnosed as obstructive sleep apnea. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The medical records show that the Veteran has a current diagnosis of obstructive sleep apnea. See March 2011 VA sleep study, and subsequent VA treatment records. The Veteran’s service treatment records show he reported a history of occasional shortness of breath while sleeping, although he denied frequent trouble sleeping. See January 1995 report of medical history. In addition, the Veteran has provided lay statements from fellow servicemembers who observed that the Veteran stop breathing while sleeping and suffer from daytime fatigue. See March 2020 statements in support of the case from E.G., T.F., and R.A. The Veteran has provided lay statements that he has experienced symptoms of shortness of breath while sleeping and daytime fatigue since his period of service. His current spouse has stated that she has known the Veteran since 2001 and she has observed the Veteran snoring, stop breathing during sleep, and awaken from sleep gasping for air. Here, post-service treatment records show the Veteran’s has a current diagnosis of a sleep apnea. In addition, his service treatment records show he complained of sleep-related problems during service. Thus, the dispositive issue is whether there is a nexus between the current diagnosed disability and his complaints during service. The record does not contain a positive medical nexus statement that links the Veteran’s currently diagnosed sleep apnea disorder to his period of service. However, the record does show that a medical professional has diagnosed the Veteran with sleep apnea based on his description of the symptoms during service and since then as well as the findings from the post-service sleep study. See June 2019 and October 2019 medical statements from G.G.S., MD. It is noted that lay evidence can be competent and sufficient to establish a diagnosis or to establish etiology of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A later diagnosis based on the Veteran’s description of symptoms and clinical findings that first manifested in service is sufficient evidence to establish a link between the current diagnosed sleep apnea disorder with his period of service. The Board acknowledges that a May 2013 VA medical opinion, in which the VA examiner concluded it is less likely than not that the Veteran’s sleep apnea was caused by or due to his military service. The VA examiner noted that although the Veteran reported a history of occasional shortness of breath while sleeping at his separation, there was no medical record documenting sleep apnea in service or until years after his discharge. While the VA examiner’s medical opinion cannot be ignored, the Board does not find that it contains more probative value than the other evidence of record that demonstrates onset of sleep-related symptomatology during service which was subsequently diagnosed as obstructive sleep apnea by treating medical professionals. Therefore, because the evidence is in relative equipoise, the benefit of the doubt is resolved in the Veteran’s favor. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current obstructive sleep apnea arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities is remanded. The Veteran seeks entitlement to service connection for diabetes mellitus. He contends that his diabetes mellitus first manifested during his period of service when he was informed that he had elevated glucose levels. In the alternative, the Veteran asserts that his diabetes mellitus is secondary to his service-connected disabilities. In support of his assertions, he has submitted an October 2019 medical statement from G.G.S., MD, who concluded that the Veteran’s hypertension led to his diabetes mellitus, and his hypertension and sleep apnea have contributed to his development of diabetes mellitus. However, a sufficient rational statement was not provided in support of these medical conclusion. On remand, the Board finds that the Veteran should be afforded with a VA examination to obtain medical opinions on the nature and etiology of his diabetes mellitus. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diabetes mellitus. The examiner is asked to address the following: (a.) Is it at least as likely as not that the Veteran’s diabetes mellitus had an onset during service or within first year after separation, or is otherwise related to service? (b.) Is it at least as likely as not that the Veteran’s diabetes mellitus is proximately due to service-connected disability, or aggravated beyond its natural progression by service-connected hypertension and sleep apnea disabilities? K. J. ALIBRANDO 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.