Citation Nr: 21009111 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 20-15 764 DATE: February 19, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for sleep apnea as secondary to generalized anxiety disorder (GAD) is granted. The reduction from 50 percent to 30 percent for GAD (previously rated as cognitive disorder, with disorder of written expression and anxiety disorder, now also claimed as insomnia), effective February 1, 2019, was not proper; the 50 percent evaluation for GAD is restored effective February 1, 2019. REMANDED Entitlement to a rating in excess of 50 percent for GAD is remanded. FINDINGS OF FACT 1. An unappealed July 2014 rating decision denied entitlement to service connection for sleep apnea secondary to service-connected cognitive disorder. 2. Evidence regarding sleep apnea received since the last final rating decision in July 2014 is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s sleep apnea is proximately due to his service-connected GAD. 4. The evidence relied upon to reduce the rating for the Veteran’s GAD from 50 percent to 30 percent did not show improvement in his ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The July 2014 rating decision is final as to the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence has been presented since the last final rating decision in July 2014 to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for establishing entitlement to service connection for sleep apnea secondary to service-connected GAD are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The reduction in rating of the service-connected GAD from 50 percent to 30 percent disabling, effective February 1, 2019, was not proper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105(e); 3.344(c); 4.1, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1978 to October 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran submitted a notice of disagreement in March 2019. A statement of the case (SOC) was issued in February 2020. The Veteran perfected a timely substantive appeal in April 2020. A Board hearing was not requested. The claims file includes multiple requests from the Veteran’s representative for copies of the file, including a letter dated December 9, 2020. However, the record also reflects that a copy of the entire claims file was sent to the representative on November 27, 2020. No additional items have been associated with the claims file since that date, other than correspondence with the representative regarding the request. Thus, there is no prejudice to the Veteran in proceeding with adjudication. New and Material Evidence 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for sleep apnea. A claim of entitlement to service connection for sleep apnea was previously denied, and the Veteran seeks to reopen this claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of an injury or disability, even where it would not be enough to convince the Board to grant a claim. Here, the Veteran initially submitted a claim of entitlement to service connection for sleep apnea in November 2005; a March 2006 rating decision denied the claim. The Veteran did not appeal the March 2006 rating decision, nor did he submit any new and material evidence within a year of that rating decision. The March 2006 rating decision therefore became final. The Veteran submitted another claim in January 2014; a July 2014 rating decision denied the claim. The Veteran did not appeal the July 2014 rating decision, nor did he submit any new and material evidence within a year of that rating decision. The July 2014 rating decision therefore became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran submitted a new claim in May 2016; a September 2016 rating decision declined to reopen the claim. The Veteran submitted another claim in October 2016; a May 2017 decision reopened the claim based upon new and material evidence, including treatment records and the Veteran’s lay statements describing his symptoms, but the claim was again denied. The Veteran submitted another claim in January 2018 along with a private medical evaluation containing a positive nexus opinion; a March 2018 decision again denied the claim. Neither the September 2016 nor the May 2017 rating decisions became final. See 38 C.F.R. § 3.156(b) (finality may be prevented from attaching to a rating decision when new and material evidence is submitted within one year of the mailing of notice of the rating decision). Relevant evidence of record at the time of the last final rating decision in July 2014 included service treatment records, military personnel records, statements from the Veteran, and post-service VA and private treatment records. Additional evidence received since the July 2014 rating decision includes a January 2018 Disability Benefits Questionnaire (DBQ) completed by a private medical evaluator, VA examinations and treatment records, and further details from the Veteran regarding the onset and symptoms of the claimed condition. This evidence was not previously on file at the time of the July 2014 decision; thus, it is new. Significantly, the January 2018 DBQ completed by a private evaluator indicates the presence of a relationship between the Veteran’s sleep apnea and his service-connected GAD. This evidence is material because it bears directly on the existence of a nexus to service or a service-connected disability, which is the reason that the claim was previously denied. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for sleep apnea, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim as set forth in Shade. Accordingly, the claim of entitlement to service connection for sleep apnea is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected GAD. Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson, 12 Vet. App. at 247. 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 disease or injury. 38 C.F.R. § 3.310(a). In order to establish entitlement to service connection on a secondary basis, the evidence must 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. Id. In general, VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct or secondary basis. However, VAOPGCPREC 1-2017 also recognizes 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). The Veteran contends that service connection is warranted for sleep apnea. After resolving any doubt in favor of the Veteran, the Board concludes that he has a current diagnosis of sleep apnea which is proximately due to his service-connected GAD. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.310(a). As an initial matter, the Board notes that the Veteran has been diagnosed with sleep apnea, as reflected in a February 2009 sleep study report. Accordingly, the Board finds that the current diagnosis element of the service connection analysis has been fulfilled. In January 2018, a private provider completed a Sleep Apnea DBQ. The private evaluator noted the 2009 diagnosis of obstructive sleep apnea. After reviewing the Veteran’s claims file, she opined that the Veteran’s obstructive sleep apnea is more likely than not related to or aggravated by his GAD. The evaluator explained that the Veteran has a current diagnosis of generalized anxiety disorder with symptoms including a depressive mood, intermittent anxiety, and sleep disturbances. He is also prescribed Celexa (with side effects including weight gain) and Klonopin (with side effects including weight gain). She noted the Veteran’s current weight placing him in a current obesity condition. The evaluator cited multiple studies documenting that obesity is known to predispose patients to obstructive sleep apnea. She also referenced medical literature supporting a nexus between sleep apnea and anxiety based upon a multitude of complex inter-related pathopsychological-physiological mechanisms and processes that occur directly from these mental health disorders and result in weight gain and/or obesity due to neuro-endocrine dysfunction processes. Medical literature in support of her opinion also included a VA study with findings indicating a strong association between mood and anxiety disorders and sleep apnea among obese veterans. In February 2018, the Veteran underwent VA examination in conjunction with his claim. The examiner opined that the Veteran’s obstructive sleep apnea is less likely than not proximately due to the service-connected GAD. He stated that the two conditions are not medically related and explained that sleep apnea is a separate entity entirely and unrelated to the Veteran’s anxiety. The examiner stated that medical literature does not support a medical relationship between the conditions. After careful review of the claims file, the Board finds that the record contains both favorable and unfavorable evidence regarding the Veteran’s contention that his sleep apnea is caused by GAD. The January 2018 private evaluation supports the contention, while the February 2018 VA examination report weighs against an etiological relationship between the conditions. In the case of conflicting medical opinions, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). Here, the Board affords little probative value to the February 2018 VA examination because the examiner did not provide a sufficient rationale or explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). He stated only that the medical literature does not support a relationship between the separate conditions of sleep apnea and anxiety but did not cite to any medical literature or provide any further explanation. This is significant because the private evaluator specifically cited medical literature in support of her finding of an etiological relationship between the Veteran’s condition, including a VA study indicating a strong association between mood and anxiety disorders and sleep apnea among obese veterans. The private evaluator essentially found that the Veteran’s mental health disorder to include medications taken for his disorder caused his obesity which in turn caused his sleep apnea. The Board finds the January 2018 opinion from the private evaluator highly compelling given the thorough and detailed rationale accompanied by medical literature in support of her opinion. The Board has weighed the January 2018 private opinion against the February 2018 VA medical opinion and ultimately affords more probative value to the January 2018 private opinion given the comprehensive explanation and concerns with the sparse statement from the VA examiner. Id. Accordingly, service connection for sleep apnea as proximately due to service-connected GAD is warranted. Rating Reduction 3. Whether the reduction in rating for GAD from 50 percent to 30 percent, effective February 1, 2019, was proper. A September 2016 rating decision granted service connection for GAD with an evaluation of 50 percent, effective May 6, 2016. The condition was previously rated as a cognitive disorder, evaluated as 10 percent disabling effective November 1, 1998 and 50 percent disabling from January 12, 2011. In October 2016, the Veteran submitted a new claim for multiple issues, which the RO accepted as a claim for an increase in the service-connected GAD. The Veteran underwent VA mental health examinations in January and May 2017. A May 2017 rating decision proposed to reduce the disability evaluation for the service-connected GAD (previously rated as cognitive disorder, with disorder of written expression and anxiety disorder, now also claimed as insomnia) to 30 percent. The Veteran was sent notice of the proposed reduction on June 1, 2017. The Veteran reported on March 15, 2018 for further VA mental health evaluation but was told that the examination was cancelled. He requested that the examination be rescheduled. A note in the claims file reflects that the Veteran did not report for a VA examination on September 21, 2018. An October 2018 rating decision decreased the disability evaluation of the service-connected GAD to 30 percent effective February 1, 2019. The Veteran contends that the 30 percent evaluation for service-connected generalized anxiety disorder does not accurately reflect the severity of the condition. He seeks an evaluation in excess of 50 percent. Reduction of disability evaluation VA regulations allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after VA follows certain procedural guidelines. 38 C.F.R. § 3.105(e). As a preliminary matter, the Board notes that the Veteran does not assert any noncompliance with the procedural requirements for rating reductions. Therefore, the Board will focus only upon whether the facts warrant rating reduction. Rating Disabilities are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344(a). They provide that rating agencies will handle cases affected by changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c). Under 38 C.F.R. § 3.105(e), when a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In addition, rating reductions must be based on improvements in a disability that reflect an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420 (1993). A rating reduction must also be based on adequate examinations and opinions. Tucker v. Derwinski, 2 Vet. App. 201 (1992). Merits of the claim After careful consideration, the Board finds that the evidence does not demonstrate an improvement in the Veteran’s ability to function under the ordinary conditions of life and work due to his GAD disability at the time of the October 2018 rating decision reduction. Considering the objective findings as well as the Veteran’s reported symptoms, it cannot be said that the preponderance of the evidence supports a finding of sustained improvement. The May 2017 examiner reported that the Veteran experienced only mild or transient symptoms; the only symptoms noted in the report are anxiety and chronic sleep impairment. This conflicts with the January 2017 VA mental health examination only a few months prior, which noted symptoms including anxiety, panic attacks more than once a week, and chronic sleep impairment, resulting in occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. Furthermore, in the October 2018 rating decision, the RO appears to rely upon the May 2017 DBQ without consideration of the findings of the January 2017 VA mental health examination including the finding of panic attacks more than once a week. The rating decision did not offer any discussion or analysis with respect to the regulations pertaining to rating reduction cases, and simply applied the rating criteria of Diagnostic Code 9400 to the objective findings from the May 2017 DBQ. The RO did not discuss the effect of the Veteran’s disability on his ability to function under the ordinary conditions of life and work. Thus, the Board finds that the May 2017 rating decision that reduced the Veteran’s GAD from a 50 percent rating to a 30 percent rating was improper. Accordingly, the 50 percent evaluation is restored. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for GAD is remanded. In March 2018, the Veteran reported for VA mental health evaluation but was told that the examination was cancelled. He requested that the examination be rescheduled. A note in the claims file indicates that the Veteran did not report for a VA examination in September 2018. No explanation has been provided by the Veteran for failure to attend the rescheduled examination. In a May 2019 statement, the Veteran described additional symptoms associated with his GAD, including anger, memory loss, delusions, depression, periods of violence, and substance abuse. In light of the allegations of additional symptoms, the Board finds that remand is required in order to afford the Veteran further VA examination to ascertain the current severity and manifestations. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran is reminded that the consequences of failure to report for a VA examination without good cause may result in a denial. 38 C.F.R. § 3.655. The duty to assist is not a one-way street; a claimant has the responsibility to cooperate in the development of all facts pertinent to a claim, to appear for scheduled examination, and to properly notify VA in the event of a change of address. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for examination by an appropriate clinician to determine the current severity of his service-connected generalized anxiety disorder (previously rated as cognitive disorder, with disorder of written expression and anxiety disorder, now also claimed as insomnia). (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the service-connected generalized anxiety disorder (previously rated as cognitive disorder, with disorder of written expression and anxiety disorder, now also claimed as insomnia) alone. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jamison, E. 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.