Citation Nr: 21067596 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-27 407 DATE: November 4, 2021 ORDER Entitlement to service connection for obstructive sleep apnea as secondary to service connected posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a right shoulder disorder is granted. REMANDED Entitlement to a compensable rating for dry eye syndrome is remanded. Entitlement to service connection for hypertension to include as secondary to service connected PTSD and/or obstructive sleep apnea is remanded. Entitlement to service connection for vertigo is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his obstructive sleep apnea was caused or aggravated by his service-connected PTSD. 2. Resolving all doubt in favor of the Veteran, his right shoulder disorder is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea as secondary to service connected PTSD have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for a right shoulder disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1981 to September 1983, with additional periods of service with the Air National Guard, to include service in Southwest Asia. These matters come to the Board of Veterans' Appeals (Board) on appeal from December 2015 and May 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Nashville, Tennessee. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in August 2021. A transcript of the hearing has been associated with the claims file. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). 1. Obstructive Sleep Apnea The Veteran seeks service connection for obstructive sleep apnea as a result of his active service and/or his service connected PTSD. With regard to his obstructive sleep apnea, the Veteran asserts that such disorder was aggravated by his service-connected PTSD due to continued and chronic sleep disturbances. See Third Party Correspondence, August 3, 2021; see also Board hearing transcript, August 4, 2021. Additionally, the Veteran's attorney asserts that the Veteran's PTSD aggravates his claustrophobia which comprises his use of a continuous airway pressure (CPAP) machine, which in turn aggravates his obstructive sleep apnea. Id. Moreover, the Veteran asserts that his exposure to chemicals and working in confined spaces during active service as an infrastructure installer, caused his obstructive sleep apnea; and his medication used to treat blood pressure, and exposure to hazards during deployment to Southwest Asia relate to his obstructive sleep apnea. See lay statement, January 5, 2016; see notice of disagreement, January 5, 2016; see also lay statement, April 20, 2017; see also VA Form 9, May 16, 2017. Additionally, the Veteran asserted that his PTSD caused sleep disturbances and that he could only sleep a few hours each night. See VA Form 21-4138 Statement in Support of Claim, May 15, 2020. Turning to the evidence, service treatment records are negative for any complaints, treatments or diagnoses related to obstructive sleep apnea, or any disorders related to his sleep. However, as noted above, the Veteran does not contend that his obstructive sleep apnea had its onset during active service. Rather, he asserts that it is as a result of his now service connected PTSD. Post service treatment records confirm diagnosis of, and treatment for obstructive sleep apnea. See e.g. VA examination report, November 18, 2015. Additionally, service connection is in effect for PTSD. At his August 2021 Board hearing, the Veteran testified that his obstructive sleep apnea was diagnosed in 2013, while he was on pre-deployment orders, and that he had previously served on active duty in the United States Air Force. The Veteran testified that he had been deployed in the Air National Guard throughout the years following separation from active service. The Veteran testified that he was not obese and that his wife indicated he would snore and keep her up at night. Additionally, he testified that he worked in electronics and was exposed to chemicals, to include trichlorethylene, which is easily absorbed through exposure and used regularly in the 1990s. He testified that the chemical was later outlawed by the Center for Disease Control (CDC) in the 1990s because of its relation to conditions, to include sleep apnea. Further, the Veteran testified that he did not sleep very much due to PTSD symptoms, and was unable to wear his CPAP mask due to his aggravated claustrophobia. Turning to the question of whether there is an etiological relationship between the Veteran's service or service connected PTSD and his diagnosed obstructive sleep apnea, the Board notes that the record contains several etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each of these opinions below. The Veteran was afforded a VA examination in November 2015. At that time, the examiner opined that the Veteran's obstructive sleep apnea clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. In this regard, the examiner noted there was no medical evidence that the Veteran's obstructive sleep apnea was permanently aggravated due to exposure to environmental hazards in the Persian Gulf during service, and any permanent aggravation would be more likely due to his obesity. Additionally, the examiner provided general statistics related to obesity and sleep apnea in both men and women. The examiner noted that the Veteran's sleep apnea was diagnosed by a sleep study in April 2013 prior to his deployment to Afghanistan. The Board finds this opinion inadequate to decide the claim. In this regard, the examiner failed to adequately address the Veteran's lay statements and contentions, namely, that his obstructive sleep apnea is secondary to his service-connected PTSD. Additionally, the examiner failed to provide supporting rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Rather, the examiner provided only general statistics related to obesity and obstructive sleep apnea, but did not address the particular circumstances of the Veteran's case. Therefore, this opinion is afforded little, if any probative weight. A July 2019 private etiology opinion from Dr. J.B. reflected an opinion that the Veteran's obstructive sleep apnea was more likely than not proximately due to, or aggravated by his service-connected PTSD. In that regard, Dr. J.B. noted that the Veteran's ongoing PTSD resulted in continued disturbed sleep, inability to wear his CPAP mask with any regularity, and aggravation of claustrophobia that compromised his used of the CPAP machine. Therefore, Dr. J.B. opined that his obstructive sleep apnea could not be properly treated due to his PTSD symptoms, and would have a lasting effect on his health. The Board finds the private etiology opinion to be highly probative. This opinion also had clear conclusions and supporting data, as well as reasoned medical explanations connected the Veteran's sleep apnea to his service. Nieves-Rodriguez v. Peake, supra. This opinion is being afforded great probative weight. There is no contrary probative opinion of record. In sum, the Veteran has a current diagnosis of obstructive sleep apnea. There is only one probative etiology opinion of record, which is in support of the Veteran's claim for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for obstructive sleep apnea as secondary to service connected PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Right Shoulder Disorder The Veteran and his attorney assert that the Veteran's injured his right shoulder at the same time that his service-connected left shoulder was injured. Id; see e.g. notice of disagreement, January 5, 2016. A June 2019 statement from M.T., a fellow servicemember, stated that the Veteran was assisting his team in March 2014, in Qatar, and injured both shoulders when an antenna pulled the line he was assisting on. M.T. indicated the Veteran reported both shoulder injuries later that day to the base medical squadron. At his August 2021 Board hearing, the Veteran testified that he injured his right shoulder while working on an 1,800 pound antenna, and that he injured both arms when the antenna was caught in a wind storm. He testified that the rope wrapped around his arms and dragged him around the ground, and that he went to the base clinic that day for treatment. The Veteran testified that he was told by the doctor in Qatar that he would need treatment in Germany for several month, but that since he was scheduled to return home in a few weeks, he declined treatment and used over the counter medication. After returning back to the United States, the Veteran sought treatment and underwent corrective surgery for his arms. The Veteran testified that his right shoulder pain never completely went away following the injury in service. Service treatment records are negative for any complaints, treatments or diagnoses related to a right shoulder disorder, or any disorders related to his right shoulder. However, the Board notes that the Veteran complained of and was treated for left shoulder pain during a period of National Guard Service. Notably, the Veteran reported he fell on ice, landed on his left side, and had surgery on his left shoulder. See Service Treatment Record, January 15, 2015. Post service treatment records confirm a diagnosis of osteoarthritis and rotator cuff tear of the right shoulder. See Private Etiology Opinion, July 3, 2019; see also VA examination report, March 13, 2017. A July 2019 private etiology opinion from Dr. J.B. indicated that the Veteran had been diagnosed osteoarthritis of the right shoulder and opined that it was more likely than not that the condition manifested itself to a compensable degree within one year after separation from active service, and was at least as likely as not manifested to a compensable degree within one year after separation from active service. In this regard, Dr. J.B. noted that the Veteran injured his shoulder in March 2014 while on active deployment, and had a rotator cuff tear repair bilaterally after returning home in 2014 and 2016. Dr. J.B. noted the Veteran developed osteoarthritis in 2015, and therefore it was at least as likely as not that his osteoarthritis of the right shoulder was related to his shoulder injuries that occurred in March 2014. This opinion also had clear conclusions and supporting data, as well as reasoned medical explanations connected the Veteran's right shoulder disorder to his service. Nieves-Rodriguez v. Peake, supra. This opinion is being afforded great probative weight. There is no contrary opinion of record. In sum, the Veteran has a current diagnosis of a right shoulder disorder. There is only one probative etiology opinion of record, which is in support of the Veteran's claim for entitlement to service connection. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, supra. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a right shoulder disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Increased Rating Dry Eye The Veteran was most recently afforded an examination for his service-connected dry eyes in August 2015. At his August 2021 Board hearing, the Veteran testified that his dry eye syndrome had worsened since his VA examination. Specifically, the Veteran testified that his symptoms of redness and the severity in the mornings had worsened. As the above evidence indicates a possible worsening of that the Veteran's dry eye syndrome since his last VA examination, an additional examination should be afforded to gauge the current level of severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). 2. Service Connection Hypertension and Vertigo The Veteran seeks entitlement to service connection for hypertension and vertigo. Specifically with regard to hypertension, the Veteran asserts that his hypertension is secondary to his service-connected PTSD. See Board Hearing Transcript, August 4, 2021. Specifically with regard to his vertigo, the Veteran asserts that his vertigo was caused by an ear injury that also resulted in his service-connected tinnitus, and that his symptoms of vertigo manifested during active service and have continued since. Id. The Veteran was afforded a VA examination for his vertigo in February 2017 and his hypertension in March 2017. At those times, the VA examiners failed to provide opinions as to the nature and etiology of his hypertension and vertigo. When VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the simply did not provide any opinion as to the nature and etiology of the Veteran's claimed hypertension and vertigo. Therefore, the Board finds that a remand is warranted to obtain additional VA opinions to determine that nature and etiology of the claimed hypertension and vertigo. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected dry eye syndrome. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected dry eye syndrome, to include any characteristics of disfigurement that may be present. A rationale for any opinion offered should be provided. 3. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed hypertension. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent or higher probability) that the Veteran's hypertension is related to an in-service injury, event, or disease? (B) Is it at least as likely as not (50 percent or higher probability) that the Veteran's hypertension was caused or aggravated by his service connected PTSD and/or obstructive sleep apnea? The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed vertigo. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (50 percent probability or greater probability) that the Veteran's vertigo is related to an in-service injury, event, or disease? The examiner should specifically address the Veteran's contention that the prolonged pressurization during a flight from Qatar to Afghanistan that caused damage to his central nervous system structures and resulted in tinnitus also caused his claimed vertigo. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.