Citation Nr: 20051135 Decision Date: 08/03/20 Archive Date: 08/03/20 DOCKET NO. 11-04 073 DATE: August 3, 2020 ORDER Service connection for residuals of congestive heart failure (CHF) is denied. Service connection for diabetes mellitus type II (diabetes) is denied. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that CHF is either etiologically related to service or is caused or aggravated by a service-connected disability. 2. The weight of the evidence is against a finding that diabetes is either etiologically related to service or is caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of CHF are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for diabetes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to May 1975. The Veteran was scheduled to participate in a September 2016 hearing before a Veterans Law Judge. The Veteran did not appear at his scheduled hearing, and he has not requested a new hearing. The Veteran’s request for a hearing is therefore considered withdrawn. See 38 C.F.R. § 20.704(d). This matter was most recently before the Board of Veterans’ Appeals (Board) in June 2018, at which time it remanded the Veteran’s claims for additional development of the medical record. The Board finds that there has been substantial compliance with its remand directive with respect to the Veteran’s claims for service connection for CHF and diabetes, and it will proceed to a decision. 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; 38 C.F.R. § 3.303(a). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Service connection for certain chronic diseases may be established based on a continuity of symptoms since discharge.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  CHF and diabetes are chronic diseases for which service connection may be established based on a continuity of symptoms or presumption. Obesity is not generally considered to be a disease or injury and therefore may not be directly connected to service. See VAOPGCPREC 1-2017 (Jan. 6, 2017). However, VA’s Office of General Counsel has opined that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). Id. In order to establish service connection on this basis, three criteria must be met: (1) the service-connected disease caused the veteran to become obese; (2) such obesity is a substantial factor in causing the disability for which service connection is sought; and (3) the disability for which service connection is sought would not have occurred but for obesity. Id. Residuals of CHF The Veteran contends that he developed CHF as a secondary result of his service-connected PTSD, to include as the result of the obesity that he alleges that he developed as a result of his PTSD. Turning to the facts in this case, the Veteran had a history of idiopathic, non-ischemic cardiomyopathy for which he underwent an open heart transplant in 2016. In August 2017, a private physician stated that the medical literature showed a significant increase in rates of obesity in individuals with PTSD. The physician opined that the Veteran’s significant obesity was a major contributing factor to his development of CHF. In February 2020, an examiner opined that it was less likely than not that the Veteran had CHF as the direct result of his active duty service. As a rationale for this opinion, the examiner noted that the Veteran had first been diagnosed with non-ischemic cardiomyopathy in 2008 following the Veteran’s complaints of mild shortness of breath. The examiner noted that the Veteran’s first treatment for symptoms relating to CHF occurred over 30 years following his separation from service, and the examiner additionally noted the Veteran’s history of heavy drinking, cocaine use, and marijuana use. The examiner noted that the Veteran had multiple recognized factors for the development of CHF, including hypertension, diabetes, alcohol use, cocaine use, and marijuana use. As a result, the examiner concluded that the Veteran’s CHF was less likely than not the direct result of his active duty service. The February 2020 examiner additionally opined that the Veteran’s CHF was neither caused nor aggravated by his service-connected PTSD. As a rationale for this opinion, the examiner again referred to the Veteran’s risk factors for the development of CHF, and he indicated that there was no credible medical authority or peer-reviewed study that has shown PTSD to be a proximate cause or aggravator of CHF. With respect to the connection between the Veteran’s PTSD, his obesity, and his CHF, the examiner again noted that the Veteran carried multiple recognized risk factors for the development of CHF. Although, the examiner noted, obesity has been recognized as a contributing factor, the examiner found, given the Veteran’s particular health history, that that it was not a substantial factor in the development of the Veteran’s CHF. The examiner further found that the evidence did not support a finding that the Veteran would not have developed CHF but for his obesity. Turning to an analysis of these facts, the Veteran is service-connected for PTSD and has a current diagnosis with CHF. With that said, the Board finds that the weight of the evidence is against a finding that the Veteran’s CHF is caused or aggravated by his PTSD, to include the obesity that the Veteran associates with his PTSD. In making this determination, the Board places great probative weight on the opinion of the February 2020 examiner that the Veteran’s CHF was not likely related to his service-connected disability because such opinion was offered by a medical professional who considered and discussed the pertinent evidence of record. While the Board has carefully considered the August 2017 opinion linking the Veteran’s PTSD to his CHF, the Board places relatively less probative weight in this opinion. Although the physician noted a relationship between PTSD and obesity, and, in turn, a relationship between obesity and CHF, the physician did not actually opine as to whether the Veteran’s CHF was caused or aggravated by his service-connected PTSD. The physician additionally failed to address the Veteran’s multiple risk factors for the development of CHF, and he did not address why obesity alone explained the Veteran’s development of CHF. To the extent that the Veteran asserts that his CHF is related to his service-connected PTSD, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with examinations based in part on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing symptoms associated with CHF. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The issue of causation of CHF, however, is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s CHF is related to his PTSD, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran’s cardiovascular system, the internal functioning of which is not readily perceivable by the use of a person’s senses. While the Veteran has not specifically argued that his CHF is related to his service, the Board finds that the weight of the evidence is against such a connection. The weight of the medical evidence, including the finding of the February 2020 examiner, is against such a connection. Furthermore, the Veteran did not show symptoms of CHF during service or for many years thereafter. Service connection is therefore unwarranted on either a presumptive basis or based upon a continuity of symptomatology. Diabetes Similar to his claim for service connection for CHF, the Veteran contends that he developed diabetes as a secondary result of his service-connected PTSD, to include as the result of the obesity that he alleges that he developed as a result of his PTSD. Turning to the facts in this case, in August 2017, a private physician stated that the medical literature showed a significant increase in rates of obesity in individuals with PTSD. The physician opined that the Veteran’s significant obesity was a major contributing factor to his development of diabetes. Once the Veteran developed diabetes, the physician opined that the Veteran’s PTSD reduced his motivation to comply with diabetic therapy and worsened the control of his diabetes. In February 2020, an examiner opined that it was less likely than not that the Veteran had diabetes as the direct result of his active duty service. As a rationale for this opinion, the examiner noted that the Veteran had not received any treatment for diabetes during service. The examiner noted that the Veteran first met the diagnostic criteria for diabetes in 2007, which was over 30 years following his separation from service. The examiner otherwise observed no evidence to support a connection between his service and his diabetes, and concluded that the Veteran’s diabetes was less likely than not the direct result of his active duty service. The February 2020 examiner additionally opined that the Veteran’s diabetes was less likely than not caused or aggravated by the Veteran’s service-connected PTSD. The examiner noted that the Veteran had multiple recognized factors for the development of diabetes, including weight, inactivity, family history, race, age, hypertension, and elevated blood lipid levels. The examiner indicated that there was no credible medical authority or peer-reviewed study that has shown PTSD to be a proximate cause or aggravator of diabetes. With respect to the connection between the Veteran’s PTSD, his obesity, and his diabetes, an April 2020 examiner noted that the Veteran carried multiple recognized risk factors for the development of diabetes. While, the examiner noted, obesity is one of these risk factors, there is no clinical evidence that the such obesity is a substantial factor among the many risk factors that the Veteran had for developing diabetes. The examiner noted a growing body of evidence indicating that diabetes often developed in non-obese individuals, with African Americans being more at risk for the development of the disease. Following a review of the medical evidence and literature, the examiner found that it would be “clinically inappropriate to postulate” whether the Veteran’s diabetes would have developed in the absence of obesity. The examiner thus concluded that it was less likely than not that the Veteran’s obesity was a significant factor in his development of diabetes. Turning to an analysis of these facts, the Veteran is service-connected for PTSD and has a current diagnosis with diabetes. With that said, the Board finds that the weight of the evidence is against a finding that the Veteran’s diabetes is caused or aggravated by his PTSD, to include the obesity that the Veteran associates with his PTSD. In making this determination, the Board places great probative weight on the opinion of the February 2020 and April 2020 examiners that the Veteran’s diabetes was not likely related to his service-connected disability, to include the obesity that he associates with such disability, because such opinions were offered by medical professionals who considered and discussed the pertinent evidence of record. While the Board has carefully considered the August 2017 opinion linking the Veteran’s PTSD to his diabetes, the Board places relatively less probative weight in this opinion. Although the physician noted a relationship between PTSD and obesity, and, in turn, a relationship between obesity and diabetes, the physician failed to address the significance, if any, of the Veteran’s multiple risk factors for the development of diabetes, and he did not address why obesity alone explained the Veteran’s development of diabetes. To the extent that the Veteran asserts that his diabetes is related to his service-connected PTSD, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with examinations based in part on the competency of those observations. Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing symptoms associated with diabetes. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The issue of causation of diabetes, however, is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran’s diabetes is related to his PTSD, the Board affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the Veteran’s endocrine system, the internal functioning of which is not readily perceivable by the use of a person’s senses. While the Veteran has not specifically argued that his diabetes is related to his service, the Board finds that the weight of the evidence is against such a connection. The weight of the medical evidence, including the finding of the February 2020 examiner, is against such a connection. Furthermore, the Veteran did not show symptoms of diabetes during service or for many years thereafter. Service connection is therefore unwarranted on either a presumptive basis or based upon a continuity of symptomatology. REASONS FOR REMAND Service Connection for OSA The Board’s June 2018 remand instructed the Agency of Original Jurisdiction (AOJ) to obtain an opinion addressing whether the Veteran’s service-connected PTSD caused or aggravated his OSA. The Veteran underwent a VA examination in February 2020, at which the examiner opined that the Veteran’s OSA was less likely than not proximately due to or the result of his service-connected PTSD. While the examiner opined as to whether the Veteran’s PTSD caused his OSA, the examiner did not address the question of aggravation. On remand, the AOJ should obtain an addendum opinion addressing whether the Veteran’s PTSD has aggravated his OSA. Increased Rating for PTSD After carefully considering this matter, and for reasons expressed immediately below, the Board finds that these issues must be remanded for further development. The Board regrets the delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duty to assist. The Veteran was last afforded a VA PTSD examination in July 2018. The evidence suggests that the Veteran’s symptoms may have worsened since the time of this examination. For example, in October 2019, the Veteran reported experiencing a three week history of suicidal thoughts to a VA clinician. With the Veteran’s endorsement of symptoms such as suicidal ideation, a new VA psychiatric examination is needed to determine the current severity of the Veteran’s service-connected PTSD. TDIU Further, because a decision on the remanded issue of an increased evaluation for the Veteran’s service-connected PTSD could significantly impact a decision on the claim for a TDIU, these issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the Board finds that readjudication of the issue of entitlement to a TDIU is warranted and that such should be accomplished on remand. The matters are REMANDED for the following actions: 1. Obtain the following opinion from an appropriate clinician to determine the etiology of the Veteran’s obstructive sleep apnea (OSA).  After reviewing the claims file, the examiner should provide an opinion as to whether it is at least likely as not that the Veteran’s OSA underwent any incremental increase in disability, regardless of its permanence, due to the Veteran’s service-connected PTSD. 2. An “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. A rationale should be provided for all requested opinions. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating this disorder. The examiner should elicit information regarding the severity, frequency, and duration of the relevant symptoms. To the extent possible, the examiner should identify the extent of any social and occupational impairment due to the Veteran’s PTSD alone. Jennifer A. Flynn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Dourmashkin, Law Clerk 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.