Citation Nr: 21006820 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-29 155 DATE: February 5, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for hypertensive heart disease has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for thrombosis, transient ischemic attack (TIA), or cerebral infarction has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for hypertension has been received, the application to reopen is granted. REMANDED Entitlement to an effective date prior to May 29, 2014, for the grant of service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating for PTSD is remanded. Entitlement to an effective date prior to September 22, 2016, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to September 22, 2016, for the establishment of basic eligibility to Dependents’ Educational Assistance (DEA) is remanded. Entitlement to service connection for hypertensive heart disease is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for stroke residuals is remanded. Entitlement to service connection for chronic kidney disease (CKD) is remanded. Entitlement to service connection for loss of use of the hands is remanded. Entitlement to service connection for loss of use of the feet is remanded. FINDINGS OF FACT 1. The Veteran’s OSA is at least as likely as not related to his service-connected PTSD. 2. In December 2015 and June 2016 rating decisions, the RO denied the Veteran’s claim for service connection for hypertensive heart disease on the basis that the evidence did not show an in-service disease or injury or a medical nexus linking hypertensive heart disease to service. 3. Evidence submitted subsequent to the June 2016 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertensive heart disease. 4. In December 2015 and June 2016 rating decisions, the RO denied the Veteran’s claim for service connection for thrombosis, TIA, or cerebral infarction on the basis that the evidence did not show an in-service disease or injury or a medical nexus linking thrombosis, TIA, or cerebral infarction to service. 5. Evidence submitted subsequent to the June 2016 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for thrombosis, TIA, or cerebral infarction. 6. In an August 2017 rating decision, the RO denied the Veteran’s claim for service connection for hypertension on the basis that the evidence did not show hypertension in service or within one year of discharge or a medical nexus linking the Veteran’s current hypertension to service. 7. Evidence submitted subsequent to the August 2017 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. The June 2016 rating decision denying service connection for hypertensive heart disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 3. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for hypertensive heart disease has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The June 2016 rating decision denying service connection for thrombosis, TIA, or cerebral infarction is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 5. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for thrombosis, TIA, or cerebral infarction has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The August 2017 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 7. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for hypertension has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1969 to April 1971 with service in the Republic of Vietnam. In January 2020, the Board declined to reopen the Veteran’s previously denied claims for service connection for hypertensive heart disease, stroke residuals, including thrombosis, TIA, or cerebral infarction, and hypertension, and denied his claims for service connection for CKD, loss of use of feet, and loss of use of hands. The Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued an order granting a September 2020 Joint Motion for Remand (JMR). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 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 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. 38 C.F.R. § 3.310(b); see Allen v. Brown, 8 Vet. App. 374 (1995); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for OSA The Veteran claims that he is entitled to service connection for his OSA as secondary to his service-connected PTSD. Upon review of the record, the Board agrees. A June 2020 sleep study confirmed a diagnosis of OSA. See Sleep study, June 2020. As such, the first elements of Shedden/Caluza and Wallin are met. Further, as the Veteran’s claim is predicated upon the theory of secondary service connection, as opposed to direct incurrence, and he is service connected for PTSD, the second element of Wallin is also met. The remaining question is whether the Veteran’s current OSA is due to or aggravated by his service-connected PTSD. The Veteran submitted a private medical opinion in September 2020. See Dr. L.M.G. letter, September 2020. Dr. L.M.G. concluded that it was at least as likely as not that the Veteran’s PTSD contributed to his development of OSA. While he acknowledged the Veteran’s other, nonservice-connected risk factors for OSA, he indicated that there was extensive medical research discussing the correlation between PTSD and OSA with causal relationships in both directions. He further explained that sleep fragmentation, common in PTSD, increases the propensity for upper airway collapse in patients with OSA. His opinion and the articles cited therein provide a medical nexus between the Veteran’s OSA and his service-connected PTSD. The Board notes that this case was previously remanded for a VA medical opinion. While the AOJ solicited an opinion in March 2020, the examiner failed to provide one because the OSA diagnosis had not yet been confirmed by sleep study. Dr. L.M.G.’s opinion relies on a subsequent sleep study confirmed diagnosis. As there are no conflicting opinions of record, the evidence supports a finding that the Veteran’s current OSA are related to his service-connected PTSD. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. The claim is granted. New and Material Evidence Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). According to the United States Court of Appeals for Veterans Claims (Court), the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of the newly submitted evidence is presumed for the purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510 (1992). 2. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for hypertensive heart disease The Veteran’s claim for service connection for hypertensive heart disease was originally denied in a December 2015 rating decision. The Agency of Original Jurisdiction (AOJ) determined that there was no evidence of an in-service disease or injury relating to hypertensive heart disease, no hypertensive heart disease within one year of discharge, and no medical nexus linking hypertensive heart disease to service. The AOJ confirmed and continued the denial in a June 2016 rating decision, again finding that there was no in-service disease or injury and no medical nexus. The Veteran did not appeal this decision or submit any new evidence within one year of the denial. The June 2016 RO decision became final and is the last prior denial of this claim. The Board finds that since the June 2016 latest final decision, the Veteran has submitted new and material evidence for the hypertensive heart disease claim. Specifically, the Veteran submitted a private opinion suggesting a link between his hypertensive heart disease and service. See Dr. V.A.C. letter, March 2019. As noted above, the Board will presume the credibility of this opinion at this juncture. See Justus, supra. Given the low bar for reopening claims, the Board finds that this opinion is sufficient to qualify as new and material evidence. The claim for service connection for hypertensive heart disease is reopened. See 38 C.F.R. § 3.385; see also Shade, supra; Hodge, supra. 3. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for stroke residuals The Veteran’s claim for service connection for thrombosis, TIA, or cerebral infarction was originally denied in a December 2015 rating decision. The AOJ determined that there was no evidence of an in-service disease or injury relating to thrombosis, TIA, or cerebral infarction, no thrombosis, TIA, or cerebral infarction within one year of discharge, and no medical nexus linking thrombosis, TIA, or cerebral infarction to service. The AOJ confirmed and continued the denial in a June 2016 rating decision, again finding that there was no in-service disease or injury and no medical nexus. The Veteran did not appeal this decision or submit any new evidence within one year of the denial. The June 2016 RO decision became final and is the last prior denial of this claim. The Board finds that since the June 2016 latest final decision, the Veteran has submitted new and material evidence for the thrombosis, TIA, or cerebral infarction claim. Specifically, the Veteran submitted a private opinion suggesting a link between his strokes and service. See Dr. V.A.C. letter, March 2019. As noted above, the Board will presume the credibility of this opinion at this juncture. See Justus, supra. Given the low bar for reopening claims, the Board finds that this opinion is sufficient to qualify as new and material evidence. The claim for service connection for thrombosis, TIA, or cerebral infarction is reopened. See 38 C.F.R. § 3.385; see also Shade, supra; Hodge, supra. 4. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for hypertension The Veteran’s claim for service connection for hypertension was originally denied in an August 2017 rating decision. The AOJ determined that there was no evidence of an in-service disease or injury relating to hypertension, no hypertension within one year of discharge, and no medical nexus linking hypertension to service. The Veteran did not appeal this decision or submit any new evidence within one year of the denial. The June 2016 RO decision became final and is the last prior denial of this claim. The Board finds that since the August 2017 latest final decision, the Veteran has submitted new and material evidence for the hypertension claim. Specifically, the Veteran submitted a private opinion suggesting a link between his hypertension and service. See Dr. V.A.C. letter, March 2019. As noted above, the Board will presume the credibility of this opinion at this juncture. See Justus, supra. Given the low bar for reopening claims, the Board finds that this opinion is sufficient to qualify as new and material evidence. The claim for service connection for hypertension is reopened. See 38 C.F.R. § 3.385; see also Shade, supra; Hodge, supra. REASONS FOR REMAND 1. Entitlement to an effective date prior to May 29, 2014, for the grant of service connection for PTSD is remanded. The AOJ granted an earlier effective date for the grant of service connection for the Veteran’s PTSD in an August 2017. In September 2017, the Veteran submitted a timely notice of disagreement (NOD) with the effective date assigned in this rating decision. Although the AOJ deemed the NOD untimely because it was not submitted within one year of the original rating decision granting service connection for PTSD, dated in November 2015. However, as the Veteran’s NOD was timely as to the August 2017 AOJ grant of an earlier effective date for the grant of service connection, the Board finds it is timely. Despite this timely NOD, a statement of the case (SOC) has not yet been issued. A remand is required for the AOJ to issue an SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 2. Entitlement to an increased rating for PTSD is remanded. Because a decision on the remanded issue of entitlement to an effective date prior to May 29, 2014 for the grant of service connection for PTSD could significantly impact a decision on the issue of an increased rating for PTSD and the appropriate appeals period therefor, the issues are inextricably intertwined. A remand of the claim for an increased rating for PTSD is required. 3. Entitlement to an effective date prior to September 22, 2016, for the grant of entitlement to a TDIU is remanded. Because a decision on the remanded issue of entitlement to an increased rating for PTSD could significantly impact a decision on the issue of the appropriate effective date for the grant of TDIU, the issues are inextricably intertwined. A remand of the claim for an earlier effective date for TDIU is also required. 4. Entitlement to an effective date prior to September 22, 2016, for the establishment of basic eligibility to DEA is remanded. Because a decision on the remanded issue of entitlement to an increased rating for PTSD could significantly impact a decision on the issue of the appropriate effective date for the establishment of basic eligibility to DEA, the issues are inextricably intertwined. A remand of the claim for an earlier effective date for DEA is also required. 5. Entitlement to service connection for hypertensive heart disease is remanded. As noted above, the Veteran submitted a March 2019 private medical opinion linking his hypertensive heart disease to Agent Orange exposure in service. While this opinion was adequate to reopen the claim, it is not adequate to decide the merits of the claim. Dr. V.A.C. discusses the Veteran’s diagnosis of primary hyperaldosteronism and notes that it leads to hypertension. She then concludes that his primary hyperaldosteronism was aggravated by his exposure to Agent Orange. However, it is unclear whether this diagnosis preexisted his service. She then states that his hypertension (with resulting hypertensive heart disease) was caused by a combination of primary hyperaldosteronism and exposure to Agent Orange. However, she did not provide any rationale or explanation for determining that both contributed. This issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, Dr. V.A.C. notes the conflicting opinions from the Institute of Medicine on the role of Agent Orange in developing hypertension, as well as the complicated nature of the Veteran’s Agent Orange exposure in the context of a separate diagnosis of primary hyperaldosteronism. For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 6. Entitlement to service connection for hypertension is remanded. As noted above, the Veteran submitted a March 2019 private medical opinion linking his hypertension to Agent Orange exposure in service. While this opinion was adequate to reopen the claim, it is not adequate to decide the merits of the claim. Dr. V.A.C. discusses the Veteran’s diagnosis of primary hyperaldosteronism and notes that it leads to hypertension. She then concludes that his primary hyperaldosteronism was aggravated by his exposure to Agent Orange. However, it is unclear whether this diagnosis preexisted his service. She then states that his hypertension was caused by a combination of primary hyperaldosteronism and exposure to Agent Orange. However, she did not provide any rationale or explanation for determining that both contributed. This issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, Dr. V.A.C. notes the conflicting opinions from the Institute of Medicine on the role of Agent Orange in developing hypertension, as well as the complicated nature of the Veteran’s Agent Orange exposure in the context of a separate diagnosis of primary hyperaldosteronism. For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 7. Entitlement to service connection for stroke residuals is remanded. As noted above, the Veteran submitted a March 2019 private medical opinion linking his stroke to Agent Orange exposure in service. While this opinion was adequate to reopen the claim, it is not adequate to decide the merits of the claim. Dr. V.A.C. discusses the Veteran’s diagnosis of primary hyperaldosteronism and notes that it greatly increases the risk for stroke. She then concludes that his primary hyperaldosteronism was aggravated by his exposure to Agent Orange. However, it is unclear whether this diagnosis preexisted his service. She then states that his stroke was caused by a combination of primary hyperaldosteronism and exposure to Agent Orange. However, she did not provide any rationale or explanation for determining that both contributed. This issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, Dr. V.A.C. notes the conflicting opinions from the Institute of Medicine on the role of Agent Orange in cerebral vascular disease and strokes, as well as the complicated nature of the Veteran’s Agent Orange exposure in the context of a separate diagnosis of primary hyperaldosteronism. For the foregoing reasons, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 8. Entitlement to service connection for CKD is remanded. Because a decision on the remanded issue of entitlement to service connection for hypertension could significantly impact a decision on the issue of service connection for CKD, the issues are inextricably intertwined. A remand of the claim for service connection for CKD is also required. 9. Entitlement to service connection for loss of use of the hands is remanded. Because a decision on the remanded issue of entitlement to service connection for stroke residuals could significantly impact a decision on the issue of service connection for loss of use of the hands, the issues are inextricably intertwined. A remand of the claim for service connection for loss of use of the hands is also required. 10. Entitlement to service connection for loss of use of the feet is remanded. Because a decision on the remanded issue of entitlement to service connection for stroke residuals could significantly impact a decision on the issue of service connection for loss of use of the feet, the issues are inextricably intertwined. A remand of the claim for service connection for loss of use of the feet is also required. The matters are REMANDED for the following actions: 1. Send the Veteran and his attorney a statement of the case that addresses the issue of entitlement to an effective date prior to May 29, 2014 for the grant of service connection for PTSD. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Obtain an advisory medical opinion from an independent medical expert regarding the etiology of the Veteran’s hypertension, hypertensive heart disease, and strokes pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The examiner should specifically address the following questions: (a.) Is it at least as likely as not that the Veteran’s hypertension, hypertensive heart disease, and/or stroke were caused by his exposure to Agent Orange in service? Please specifically address the March 2019 private medical opinion and medical literature cited therein, including the Updates from the Institute of Medicine. (b.) Is there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran had primary hyperaldosteronism that preexisted his active duty service? (c.) If it is determined that the Veteran’s primary aldosteronism clearly and unmistakably preexisted service, is there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting primary aldosteronism was not aggravated beyond the natural progression of the condition? (d.) If there is insufficient evidence showing that primary aldosteronism preexisted service (i.e., a lack of clear and unmistakable evidence), is it is as likely as not (a 50 percent probability or greater) that the Veteran’s currently diagnosed primary aldosteronism was caused or aggravated by his active service? The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.