Citation Nr: 21002195 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-26 718 DATE: January 13, 2021 ORDER Entitlement to service connection hypertension to include as secondary to acquired psychiatric disability to include anxiety with alcohol use disorder is granted. Entitlement to service connection for diabetes to include as secondary to service connected acquired physiatric disability to include anxiety with alcohol use disorder is granted. Entitlement to service connection for supraventricular tachycardia to include as secondary to acquired psychiatric disability to include anxiety with alcohol use disorder is granted. REMANDED Entitlement to an increased rating in excess of 50 percent for an acquired psychiatric disability to include anxiety is remanded. Entitlement to an increased rating in excess of 10 percent of a right knee disability is remanded. Entitlement to service connection for sleep apnea to include as secondary to service-connected disabilities is remanded. Entitlement to a total disability rating due to individual unemployability prior to November 22, 2019 is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s hypertension was caused by his acquired psychiatric disability to include anxiety with alcohol use disorder. 2. It is at least as likely as not that the Veteran’s diabetes was caused by his acquired psychiatric disability to include anxiety with alcohol use disorder. 3. It is at least as likely as not that the Veteran’s supraventricular tachycardia was caused by his acquired psychiatric disability to include anxiety with alcohol use disorder. CONCLUSIONS OF LAW 1. The criteria for service connection hypertension to include as secondary to acquired psychiatric disability to include anxiety with alcohol use disorder have been met. 38 U.S.C. §§ 1131, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria service connection for diabetes to include as secondary to service connected acquired physiatric disability to include anxiety with alcohol use disorder have been met. 38 U.S.C. §§ 1131, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria service connection for supraventricular tachycardia to include as secondary to acquired psychiatric disability to include anxiety with alcohol use disorder have been met. 38 U.S.C. §§ 1131, 5107, 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1981 to May 1985. Service Connection Service connection may alternatively 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 disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). 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. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection hypertension to include as secondary to acquired psychiatric disability to include anxiety with alcohol use disorder At the onset, the Board notes there is no dispute that the Veteran has the current disability of hypertension, most recently noted in in March 2020 VA treatment record. Additionally, there is no dispute that the Veteran is currently service connected for an acquired psychiatric disability to include anxiety with alcohol use disorder per an April 2006 rating decision. The only remaining issue is a nexus between his hypertension and this service-connected disability. Turning to nexus, the Board finds that evidence support the Veteran’s contention that his hypertension was caused by his service-connected anxiety. The Board recognizes that Veteran has supplied a May 2013 private medical opinion which found that his service-connected anxiety with alcohol use disorder caused his hypertension. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (Most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). The private examiner reviewed the Veteran’s claims file cited specific treatment records and medical treatises in forming his opinion. Moreover, the Veteran’s VA treatment records support this private medical examiner’s opinion as noted in a June 2014 VA treatment record that found that alcohol abuse likely contributed to Veteran’s difficulty in controlling his hypertension and a December 2008, VA treatment record which suggest a link between alcohol use and Veteran’s high blood pressure. Considering the foregoing, the Bord finds that the Veteran’s hypertension warrants service connection on a secondary basis. 2. Entitlement to service connection for diabetes to include as secondary to service connected acquired physiatric disability to include anxiety with alcohol use disorder At the onset, the Board notes there is no dispute that the Veteran has the current disability of diabetes, most recently noted in in March 2020 VA treatment record. Additionally, there is not dispute that the Veteran is currently service connected for an acquired psychiatric disability to include anxiety with alcohol use disorder per an April 2006 rating decision. The only remaining issue is a nexus between his hypertension and this service-connected disability. Turning to nexus, the Board finds that evidence support the Veteran’s contention that his hypertension was caused by his service-connected anxiety with alcohol use disorder. The Board recognizes that Veteran has supplied a May 2013 private medical opinion which found that his service-connected anxiety with alcohol use disorder caused his diabetes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The private examiner reviewed the Veteran’s claims file cited specific treatment records and medical treatises in forming his opinion. Moreover, the Veteran’s VA treatment records support this private medical examiner’s opinion as noted in a June 2008 and April 2013 VA treatment records which both suggested link between the Veteran’s anxiety with alcohol use disorder and his diabetes. Considering the foregoing, the Bord finds that the Veteran’s diabetes warrants service connection on a secondary basis. 3. Entitlement to service connection for supraventricular tachycardia to include as secondary to acquired psychiatric disability to include anxiety with alcohol use disorder At the onset, the Board notes there is no dispute that the Veteran has the current disability of supraventricular tachycardia, most recently noted in in March 2020 VA treatment record. Additionally, there is no dispute that the Veteran is currently service connected for an acquired psychiatric disability to include anxiety with alcohol use disorder per an April 2006 rating decision. The only remaining issue is a nexus between his hypertension and this service-connected disability. Turning to nexus, the Board finds that evidence support the Veteran’s contention that his hypertension was caused by his service-connected anxiety. The Board recognizes that Veteran has supplied a May 2013 private medical opinion which found that his service-connected anxiety caused his supraventricular tachycardia. Moreover, an October 2014 VA examination addendum echoed this sentiment stating that anxiety can cause tachycardia. Considering the foregoing, the Bord finds that the Veteran’s supraventricular tachycardia warrants service connection on a secondary basis REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 50 percent for an acquired psychiatric disability to include anxiety and entitlement to an increased rating in excess of 10 percent of a right knee disability are remanded. The Board finds that both the November 2019 VA examinations for the Veteran’s knee and the Veteran’s acquired psychiatric disability are, in part, inadequate. The Veteran’s knee examination cites review of imaging studies without providing a date in which these studies were conducted or including them in the examination report and the psychiatric examination contradicts itself when it cited the Veteran’s only psychiatric disability as an anxiety disability with alcohol use disorder then proceeds to cite other mental health disabilities to include depression. Considering the foregoing, the Board finds that the examinations are, in part inadequate. 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). 2. Entitlement to service connection for sleep apnea to include as secondary to service-connected disabilities. The Board acknowledges the May 2020 Joint Motion for Remand from the Court of Appeals for Veteran’s noted that the VA had not fulfilled their duty to assist as the examination provided to the Veteran in October 2014 and March 2017 are, in part, inadequate because neither examination report addressed the issue of “aggravation as separate concept from secondary causation”. 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 a total disability rating due to individual unemployability prior to November 22, 2019 is remanded. The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examinations. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiners as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiners, and the results of any testing must be included in the examination report. (A). RIGHT KNEE: The VA examiner should determine the current nature and severity of the Veteran’s right knee. Any diagnostic imagery reviewed should be appropriately cited and accompany the examination report. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both knees must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In particular, the examiner is directed to estimate the degree of functional loss during flareups and with repeated use over time, as represented by lost range of motion of the left knee. The examiner must elicit from the Veteran such information as is necessary to make such a determination. It is understood that any determination of functional loss in situations not under direct observation is an estimate, the furnishing of which may require the examiner to engage in a degree of speculation. Any opinion should be accompanied by a supporting rationale. (B). ACQUIRED PSYCHIATRIC DISABILITY WITH ALCOHOL USE DISORDER: The VA examiner should determine the nature and severity the Veteran’s psychiatric disability with alcohol use disorder. Any opinion should be accompanied by a supporting rationale. (C). SLEEP APNEA: After considering the pertinent information in the record in its entirety, the VA examiner should identify any sleep disorders, to include sleep apnea. The examiner is then asked to opine as to whether it is at least as likely as not (i.e. 50 percent probability or greater), that any sleep disorder identified, to include sleep apnea, was incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his psychiatric disability with alcohol use disorder. The VA examiner should take a detailed history from the Veteran regarding his sleep disorder and consider the pertinent information in the record in its entirety. 3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal, to include the TDIU claim. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Acosta, 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.