Citation Nr: 21004338 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-66 914 DATE: January 26, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, is granted. Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea began during service. 2. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disorder had its onset in service. 3. Resolving reasonable doubt in the Veteran’s favor, his bilateral shoulder disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2010 to January 2014. The matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 and January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. The Board notes that several of the claims on appeal have been incorrectly identified by the RO as requiring new and material evidence to be reopened. The claims for service connection for hypertension, sleep apnea, a left shoulder disability, and right hand disability were denied in an April 2015 rating decision; the claims for service connection for a right shoulder disability and an anxiety disorder were denied in a May 2015 rating decision. In February 2016, the Veteran requested reconsideration of the claims. An April 2016 rating decision confirmed and continued the denials for service connection. In January 2017, the Veteran submitted a timely notice of disagreement (NOD) as to the April 2016 rating decision; and perfected his appeal. Accordingly, there has been no final decision as to these issues and the Board need not address whether new and material evidence has been received to reopen the claims. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Sleep Apnea The Veteran contends that his sleep apnea is related to service. Based on all the available evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board concludes that the Veteran has a current diagnosis of sleep apnea 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. The Veteran’s March and April 2013 service treatment records (STRs) note difficulty falling asleep, staying asleep, waking in the middle of the night, waking too early, and fatigue upon awakening. The Veteran was diagnosed with insomnia and sleep disturbance and was instructed to attend a sleep hygiene class. In April 2015, the Veteran was diagnosed with mild obstructive sleep apnea syndrome. See VA treatment records. A May 2020 private medical opinion concluded that based on a review of the Veteran’s STRs and post-military medical records, the Veteran’s sleep apnea developed during service. Specifically, the physician indicated that given the chronicity of the Veteran’s obstructive sleep apnea with the onset of significant, relevant symptomology noted during service, his sleep apnea began in service. The Board notes that there is no contrary medical opinion regarding the nature and etiology of the Veteran’s sleep apnea. The Board finds that the May 2020 private medical opinion is based on a review of the file, consideration of the evidence, and medical expertise and training. Consequently, the Board finds the medical opinion is adequate and dispositive to the matter at hand. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and finds that service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder. Specifically, during the June 2020 Board hearing, the Veteran testified having anxiety symptoms during and since service. The Veteran’s March and April 2013 STRs note reports of acute stress/anxiety. The Veteran was afforded a VA examination in March 2015, in which he was diagnosed with anxiety disorder not otherwise specified. The examiner opined that the condition was not due to treatment in service or reported events in service. A May 2020 private mental disorders (other than posttraumatic stress disorder and eating disorders) disability benefits questionnaire (DBQ) authored by Dr. K.G., Ed.D, LLP, noted diagnoses of panic disorder, major depressive disorder, and intermittent explosive disorder. She concluded that based on a review of the Veteran’s STRs and post-military medical records, the Veteran’s current anxiety disorder at least as likely as not began in service. She reasoned that the Veteran’s March 2013 STRs noted the onset of relevant symptomology during service, as he was noted to suffer from “symptoms of acute stress or a specific phobia.” She also noted that in addition to noted stress symptoms, the Veteran was reported to have had 15 days out of a 30-day period of “inadequate sleep” with difficulty falling asleep, staying asleep during the night, or waking up too early. She further noted that in April 2013, the Veteran admitted that it was somewhat difficult for him to do work, take care of things, and get along with others due to his trouble sleeping and feeling tired or having little energy. Additionally, she noted that an April 2013 treatment note indicated symptoms of acute stress/anxiety in addition to sleeping problems making it difficult to do daily activities. Dr. K.G. stated that medical literature supports a significant correlation between sleep disordered breathing and mental health conditions like depression and anxiety. She reasoned that a Stanford University study shows that breathing-related sleep disorders, to include breathing anomalies such as chronic, disruptive snoring and obstructive sleep apnea, if left untreated lead to other conditions that can affect a person’s daily routine and disrupt his or her familial, social, and professional life. She stated that the Veteran’s STRs contain significant evidence to suggest an onset of anxiety and sleep disturbance during service. She concluded that the Veteran’s continued symptomology of his sleep-disordered breathing, depression, and anxiety, even after discharge from service, is consistent with a chronic condition that likely had its onset in service. Thus, she concluded that the Veteran’s current anxiety disorder is at least as likely as not the result of his time in service. The Board has been presented with positive and negative medical evidence regarding the etiology of the Veteran’s anxiety disorder. However, in weighing the positive and negative evidence of record, and in resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted. Here, the evidence of record supports the Board’s finding that the Veteran’s anxiety disorder began during service. Specifically, May 2020 private medical opinion concluded that the Veteran’s anxiety disorder at least as likely as not had its onset during service. The Board finds the May 2020 private medical opinion to be probative, as it is based on an accurate medical and lay history as well as provides a reasoned explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As a result, the Board finds that the May 2020 private medical opinion is entitled to significant weight. In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s panic disorder began during service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 50. Bilateral Shoulder Disability The Veteran contends that his bilateral shoulder disability is related to service. The Veteran’s October 2013 STRs show that he reported experiencing right shoulder pain, primarily when doing push-ups and running; he was diagnosed with joint pain, localized in the right shoulder. In November 2013, the Veteran reported having pain and tightness, greater in the right shoulder; he was diagnosed with right shoulder impingement. The Veteran was afforded a VA examination in March 2015, in which he was diagnosed with right rotator cuff tendonitis. The Veteran reported that he experienced bilateral shoulder pain since 2013. He reported having sharp and dull pain that comes and goes with certain activities. No medical nexus opinion was provided. A May 2020 private shoulders and arm conditions DBQ noted diagnoses of shoulder impingement syndrome and acromioclavicular joint osteoarthritis. In May 2020, the Veteran submitted a private medical opinion from Dr. R.M. He opined that based on a review of the Veteran’s STRs and post-military medical records, the Veteran’s bilateral shoulder osteoarthritis at least as likely as not began in or was the result of his time in service. He reasoned that the Veteran’s military occupational specialty (MOS) required him to engage in tasks requiring frequent typing as well as to maintain a high level of physical readiness, including the semiannual physical fitness test, road/ruck marches under load, and running exercises. He further reasoned that the Veteran’s October and November 2013 STRs noted complaints of bilateral shoulder pain and that examination findings were consistent with mild rotator cuff tendinopathy and right shoulder impingement. He indicated that during a December 2013 physical therapy appointment for shoulder pain, the Veteran reported that his symptoms worsened by running and walking, picking-up items, and lying on his shoulder. He also stated that the Veteran’s VA treatment records document symptoms of bilateral extremity pain and weakness. Thus, Dr. R.M. concluded that as osteoarthritis is a degenerative disease it is reasonable that the Veteran’s overuse of his shoulders in service, in addition to his involvement in high impact activities during that time, led to his current bilateral shoulder disability. Based on all the available evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a bilateral shoulder disability is warranted. Here, the May 2020 private medical opinion concluded that the Veteran’s bilateral shoulder disability was etiologically related to service. The Board finds that the private medical examiner’s conclusions were based on a review of the file, consideration of the evidence, and medical expertise and training. Consequently, the Board finds the medical opinion is adequate and dispositive to the matter at hand. The Board further notes that there is no contrary competent medical opinion regarding the etiology of the Veteran’s bilateral shoulder disability of record. In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s bilateral shoulder disability is related to service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 50.   REASONS FOR REMAND Service Connection for Hypertension For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101. As to service connection for hypertension, the Veteran testified at the June 2020 Board hearing that he had high blood pressure in service. His post-service medical treatment records indicate that he was formally diagnosed with hypertension in May 2016. See VA medical treatment records. However, the Board notes that the Veteran’s STRs note borderline diastolic blood pressure reading of 90 on November 5, 2013 and November 6, 2013. His November 2013 medical records note prehypertension and systemic hypertension. Based upon this, the Board finds that the Veteran should be afforded an updated VA examination for the purpose of determining whether he now has chronic, i.e., essential, hypertension and, if so, whether it is as likely as not to have first manifested during service, or whether it is as likely as not to have first manifested within one year thereafter. Moreover, the Board finds that upon remand a VA medical opinion should be obtained as to whether the Veteran’s hypertension is secondary to his sleep apnea or acquired psychiatric disorder. Service Connection for a Right Hand Disability The Veteran alleges that his right hand disability is related to service, to include as due to frequent typing. The Veteran was afforded a VA examination in March 2015 and April 2016, in which no right hand disability was noted. The April 2016 VA examiner diagnosed carpal tunnel syndrome of the left upper extremity. In May 2020, the Veteran submitted a private medical opinion from Dr. R.M. who noted a diagnosis of bilateral carpal tunnel syndrome. The Board notes that it is unclear if Dr. R.M. conducted a physical examination of the Veteran or if the diagnosis of bilateral carpal tunnel syndrome was based solely upon review of the Veteran’s medical records, which are silent as to any diagnosis of carpal tunnel syndrome as to the right upper extremity. Consequently, the Board cannot make a fully informed decision on the Veteran’s claim for service connection for a right hand disability and finds that clarification is required to determine if the Veteran has a current right hand disability that is related to service. Accordingly, remand is required to obtain an updated VA examination and medical opinion. Service Connection for a Bilateral Foot Disability The Veteran contends that he experienced bilateral foot pain in service. Specifically, he testified that his feet were swollen all of the time during service and that he tried different boots and shoe inserts but that they did not help his condition. See June 2020 Board hearing transcript. The Veteran’s 2017 VA treatment records note a diagnosis of plantar fasciitis. A June 2020 private foot conditions DBQ diagnosed the Veteran with metatarsalgia, tibial tendon dysfunction, plantar fasciitis, and possible calcaneal bone spurs. The Board acknowledges that the Veteran submitted a May 2020 private medical opinion from Dr. R.M., who opined that the Veteran’s feet conditions began in or were a result of his time in service. However, the Board finds the submitted private medical opinion to be conclusory as the physician failed to provide adequate rationale to support this conclusion. The Veteran has not been provided a VA examination with respect to his claim for service connection for a bilateral foot disability. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that there is sufficient evidence of record for this duty to assist to attach. Accordingly, the Board finds that remand for a VA medical opinion to determine the nature and etiology of the Veteran’s bilateral foot disability is necessary. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing directive #1, schedule the Veteran for a VA examination with a qualified medical professional to determine the nature and etiology of the Veteran’s hypertension. Following a review of the record, the examiner is asked to opine if the Veteran now has chronic, i.e. essential hypertension. If so, the examiner shall opine to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension first manifested during service or within one year thereafter; b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is proximately due to, the result of, his sleep apnea and/or acquired psychiatric disorder; c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is aggravated beyond normal progression by his sleep apnea and/or acquired psychiatric disorder? A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 3. After completing directive #1, schedule the Veteran for a VA examination with a qualified medical professional to determine the nature and etiology of the Veteran’s right hand disability. Following a review of the record, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right hand disability manifested in or is otherwise etiologically related to service. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 4. After completing directive #1, schedule the Veteran for a VA examination with a qualified medial professional to determine the nature and etiology of the Veteran’s bilateral foot disability. Following a review of the record, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral foot disability manifested in or is otherwise related to service, to include as due to physical activity such as running and walking. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.