Citation Nr: 21009712 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 08-25 702 DATE: February 23, 2021 ORDER The June 2005 rating decision denying service connection for hypertension is not final. Service connection for hypertension is granted. Service connection for gastroesophageal reflux disease (GERD) is granted. Service connection for obstructive sleep apnea is granted. REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) prior to April 5, 2012, is remanded. FINDINGS OF FACT 1. In June 2005, the Agency of Original Jurisdiction denied service connection for hypertension. The Veteran did not submit a timely notice of disagreement with the decision. 2. An August 2005 Department of Veterans Affairs (VA) treatment record is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 3. Service connection has been established for posttraumatic stress disorder (PTSD) and erectile dysfunction. 4. Hypertension has been shown to be related to the service connected PTSD. 5. GERD has been shown to be related to the service connected PTSD. 6. Obstructive sleep apnea has been shown to at least as likely as not been aggravated by the service connected PTSD. CONCLUSIONS OF LAW 1. The June 2005 rating decision that denied service connection for hypertension is not final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for service connection for hypertension have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for service connection for GERD have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to November 1971. He served in the Republic of Vietnam. Application to Reopen Claim for Service Connection for Hypertension Generally, absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant’s claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals (Board) without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In June 2005, the Agency of Original Jurisdiction denied service connection for hypertension as the record “fails to show that this disability has been clinically diagnosed.” In June 2005, the Veteran was informed in writing of the adverse decision and his appellate rights. He did not submit a timely notice of disagreement. The evidence considered in reaching the June 2005 rating decision included service treatment records, service personnel records, and written statements from the Veteran. The service treatment records do not refer to hypertension. An August 2005 VA treatment record states that the Veteran exhibited a blood pressure reading of 142/87. Treating VA medical personnel reported that the Veteran had “hypertension not on meds.” The August 2005 VA treatment record was received into the record within one year following notice of the June 2005 rating decision. It is of such significance that it raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension when considered with the evidence previously of record. Therefore, the Board finds that the June 2005 rating decision is not final. 38 C.F.R. § 3.156(b). The Board will now address the issue of service connection on the merits. Service Connection Service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for PTSD and erectile dysfunction. Hypertension The report of a May 2017 VA hypertension examination states that the Veteran was diagnosed with hypertension. The examiner noted that “comorbid health problems are believed to occur in patients with dissociative PTSD at higher rates than in the general population, such as systemic exertion intolerance disease (also known as chronic fatigue syndrome), gastroesophageal reflux disease, irritable bowel syndrome, headaches, heart disease, liver disease, pulmonary diseases, and autoimmune disorders.” An April 2020 addendum to the May 2017 VA hypertension examination report indicates that the examiner at the May 2017 noted that “hypertension can occur in higher rates with individuals who have PTSD.” The examiner acknowledged that, while “there is no consensus medical opinion that PTSD causes or results in chronic hypertension/essential hypertension,” there are several studies that indicate that “PTSD appears to be related to hypertension.” The Board finds that the evidence is in at least equipoise as to whether the diagnosed hypertension is related to the service connected PTSD. VA examiners have acknowledged that hypertension can occur in higher rates with individuals who have PTSD. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for hypertension. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). GERD The report of a November 2015 VA esophageal examination states that the Veteran was diagnosed with GERD. The report of the May 2017 VA examination states that the examiner acknowledged that “comorbid health problems are believed to occur in patients with dissociative PTSD at higher rates than in the general population, such as systemic exertion intolerance disease (also known as chronic fatigue syndrome), gastroesophageal reflux disease, irritable bowel syndrome, headaches, heart disease, liver disease, pulmonary diseases, and autoimmune disorders.” The Board finds that the evidence is in at least equipoise as to whether the diagnosed GERD is related to the service connected PTSD. A VA examiner has acknowledged that GERD occurs at a higher frequency in individuals with PTSD. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for GERD. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). Obstructive Sleep Apnea The Veteran has submitted several medical articles which support the existence of a causal relationship between depression, PTSD, and obstructive sleep apnea. The report of a November 2015 VA sleep disabilities examination states that the service connected PTSD was manifested by significant sleep impairment. He was not diagnosed with sleep apnea. An October 2016 VA sleep study diagnosed the Veteran with obstructive sleep apnea. A May 2020 VA evaluation states that “PTSD does not cause or aggravate … a sleep disorder, to include sleep apnea.” The VA examiner did not note or otherwise address the significant sleep impairment associated with the service connected PTSD and its relationship to the diagnosed obstructive sleep apnea. Therefore, the Board finds that the examination report to be of essentially no probative value. The Board finds that the evidence is in at least equipoise as to whether the diagnosed obstructive sleep apnea was aggravated (increased in severity beyond its natural progression) by the service connected PTSD. The Veteran has submitted medical articles which support such a relationship. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for obstructive sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS FOR REMAND Entitlement to a TDIU, prior to April 5, 2012, is remanded. Entitlement to a TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. In light of the award of service connection for hypertension, GERD, and obstructive sleep apnea above, the Board finds that the issue of entitlement to a TDIU for the period prior to April 5, 2012, should be readjudicated. The matters are REMANDED for the following action: Readjudicate the issue of entitlement to a TDIU prior to April 5, 2012. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.