Citation Nr: 21011109 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 20-29 079 DATE: February 26, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for sleep apnea is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for diabetes mellitus, type II (DMII) is granted. Service connection for xerostomia, as secondary to service-connected hypertensive heart disease, is granted. REMANDED Entitlement to a disability rating higher than 30 percent for hypertensive heart disease is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for DMII is remanded. Entitlement to service connection for aerophagia is remanded. Entitlement to service connection for rhinitis is remanded. Entitlement to service connection for a dental condition for treatment purposes is remanded. REFERRED ISSUES In a September 2017 statement clarifying his claims, the Veteran specifically noted that he was seeking compensation benefits under 38 U.S.C. § 1151 for his claimed disabilities, including rhinitis, sleep apnea, and DMII, as a result of treatment rendered by VA providers. Notably, the agency of original jurisdiction (AOJ) has not specifically adjudicated the Veteran’s claims for compensation benefits pursuant to 38 U.S.C. § 1151. Thus, the Board does not have jurisdiction over such claims, and these matters are referred to the AOJ for appropriate action. See 38 C.F.R. § 20.904(b) (continuing to provide for referral of unadjudicated claims). FINDINGS OF FACT 1. An unappealed October 2014 rating decision denied service connection for sleep apnea and DMII; new and material evidence was not received within one year of that decision. 2. Additional evidence received since the October 2014 rating decision relates to previously unestablished facts necessary to substantiate the service connection claims for sleep apnea and DMII. 3. Xerostomia is at least as likely as not etiologically related to the Veteran’s service-connected hypertensive heart disease. CONCLUSIONS OF LAW 1. The October 2014 rating decision that denied service connection for sleep apnea and DMII is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. The criteria to reopen the service connection claims for sleep apnea and DMII have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. The criteria for service connection for xerostomia, as secondary to service-connected hypertensive heart disease, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.110. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1982 to April 1986. This current appeal before the Board of Veterans’ Appeals (Board) arose from a May 2018 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to a disability rating higher than 30 percent for service-connected hypertensive heart disease; denied entitlement to service connection for aerophagia, rhinitis, xerostomia; denied service connection for a dental condition for treatment purposes, and confirmed and continued previous denials of service connection claims for DMII and sleep apnea. New and Material Evidence—DMII & Sleep Apnea Generally, a final decision issued by the Agency of Original Jurisdiction (AOJ) may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105(c), (d). The exception to this rule is found at 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran's original service connection claims for sleep apnea and DMII were denied in an October 2014 rating decision. At that time, the AOJ found that there was no link between the diagnosed sleep apnea and DMII and the Veteran’s active service, and thus, that the disabilities did not occur during, and were not caused by service. The Veteran was notified of the decision and his appellate rights, in an October 2014 letter, but he did not initiate an appeal. See 38 C.F.R. §§ 19.20, 19.21. There is no indication that new and material evidence pertinent to these issues was received within one year following the decision, or that additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Thus, the October 2014 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence of record at that time of the October 2014 rating decision included VA treatment records dated through August 2014, which reflected ongoing treatment for DMII and sleep apnea; and the Veteran’s service treatment records (STRs), which are devoid of any indication that he had signs or symptoms indicative of sleep apnea or DMII during his active service. New evidence pertinent to the sleep apnea and DMII claims includes VA treatment records dated through March 2020 and multiple private treatment reports, which reflect ongoing treatment for sleep apnea and DMII; May 2018 VA examination reports and VA opinions, which confirm diagnoses of these disabilities and provide negative etiology opinions with respect to the relationship between these disabilities and hypertension; and August 2017, September 2018, and November 2018 statements from the Veteran delineating his contentions that his sleep apnea is etiologically related to his hypertensive heart disease, including by the way of medication to treat the disease, and that his DMII developed and was exacerbated by his hypertensive heart disease, including by way of Vitamin D deficiency, and sleep apnea. Given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the October 2014 rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a), as it provides evidence of ongoing treatment for these disabilities, and contains the Veteran’s clear contention and development exploring the probability that these disabilities are interrelated, and that DMII specifically was incurred or aggravated by service-connected hypertensive heart disease. Thus, the new evidence suggests bases for awarding service connection, including a basis pursuant to an alternative theory of entitlement not previously considered. Under these circumstances, the Board concludes that the criteria for reopening the service connection claims for sleep apnea and DMII are met. Service Connection for Xerostomia Service connection may be granted for 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 may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury, event, or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether each element of a claim is met is based on an analysis of all pertinent evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection also may be established on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that 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), (b); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that, although the AOJ adjudicated the service connection claim for xerostomia on a direct basis, the Veteran specifically contended that xerostomia resulted from medications to treat service-connected hypertensive heart disease and as a result of using a CPAP to treat his claimed sleep apnea. Further, as explained below, the evidence supports a finding that service connection for xerostomia is warranted as secondary to service-connected hypertensive heart disease on a causation basis. As such, the Veteran is not prejudiced by the Board limiting its analysis to secondary service connection. First addressing the matter of current disability, the Veteran’s xerostomia has been acknowledged by examiners who provided opinions in April 2018 and June 2020 reports. The Board notes that the Veteran is also competent to report having symptoms of xerostomia. Thus, affording him the benefit of the doubt, the Board finds that the current disability requirement for xerostomia have been met. On the question of medical etiology of the xerostomia, in a June 2020 opinion, a VA-contracted examiner opined that the Veteran’s medications to treat his hypertension contributed to his xerostomia. Additionally, during an August 2016 VA dental consultation, the Veteran’s treating dentist alluded to the Veteran’s medications as being a cause of his xerostomia. Where these opinions note the contributory factor of the Veteran’s medications to treat symptoms of service-connected hypertensive heart disease, resolving reasonable doubt in the Veteran’s favor, the Board reads the opinions as etiologically relating the Veteran’s xerostomia to the service-connected hypertensive heart disease. The Board finds the foregoing opinions to be of significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The dentists who provided the opinions demonstrated familiarity with the Veteran’s medical and dental treatment history, including the use of his hypertensive medications, and noted the relationship between the xerostomia and these medications. These opinions, therefore, constitute competent, probative evidence tending to support the award of secondary service connection for xerostomia on a causation basis. 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. 439. To the extent that the referenced opinions are lacking in rationale, the Board points out that a clinician is required to consider all the relevant evidence before forming an opinion and support his or her opinion with an analysis that the Board can consider and weigh against contrary opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). In this case, contrary opinions as to the causation of the Veteran’s xerostomia have not been provided. Rather, the only other examiner who addressed this matter indicated that he could not provide a proper opinion as the Veteran left without completing the examination. Moreover, it is clear in this scenario that the dentists who provided the favorable opinions of record considered the relevant evidence at their disposal, including the Veteran’s long treatment history for symptoms of hypertensive heart disease, before providing the favorable opinions. The Board finds no reason to discount these opinions based on the expertise and qualifications of the respective dentists. Thus, reading the favorable opinions as a whole, and in the context of the evidence of record, the Board finds that the opinions are of sufficient probative weight to warrant a finding that the Veteran’s xerostomia is at least as likely as not etiologically related to his service-connected hypertensive heart disease. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Accordingly, in view of the totality of the evidence, with resolution of reasonable doubt in the Veteran’s favor, the Board concludes that the criteria for service connection for xerostomia, as secondary to the service-connected hypertensive heart disease, are met. REASONS FOR REMAND Higher disability rating for hypertensive heart disease With respect to the Veteran’s higher rating claim for hypertensive heart disease, while he was last afforded a VA examination to assess the severity of the disability in April 2018, the Board finds the examination report to be deficient for multiple reasons. First, while the examiner indicated that exercise stress testing was not performed as such testing was not without significant risk, the examiner did not indicate what risks were presented. As the Veteran pointed out in a January 2019 correspondence to VA, the examiner’s indication is also inconsistent with the examiner’s determination that, based on the results of the Veteran’s interview-based METs level test, he could perform activities such as climbing stairs quickly, moderate bicycling, sawing work, or jogging, before experiencing cardiological symptoms. Further, while the examiner indicated that the Veteran had an METs level of greater than 7 through 10, the examiner did not indicate what specific cardiological symptoms (e.g., dyspnea, fatigue, angina, dizziness, or syncope) the Veteran experienced upon engaging in the activities at that METs level, as contemplated by the regulations. Based on the deficiencies in the April 2018 VA heart conditions examination, remand is necessary to afford the Veteran a new VA examination to assess the current severity of his hypertensive heart disease. 38 C.F.R. § 4.2. Service connection for sleep apnea, DMII, and aerophagia The Veteran has contended that each of these disabilities are the result of his service-connected hypertensive heart disease, as well as other claimed disabilities, to include as a result of prescribed medications. While unfavorable VA opinions with respect to the etiology of these claimed disabilities were obtained in May 2018, the opinions are deficient for multiple reasons. With respect to the opinions for sleep apnea and DMII, specifically, the examiner did not provide a clear rationale for the opinions, but only indicated that he relied on a review of history, physical examination, the Veteran’s claims file, and medical textbook in providing the etiology opinions. See Nieves-Rodriguez, 22 Vet. App. 295, 302 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). With respect to the Veteran’s claimed aerophagia, the examiner indicated that he could not provide an etiological opinion as to this disability with resorting to speculation, as the Veteran left without completing the examination. The examiner did not indicate why an opinion based on the evidence of record could not be provided. See Jones v. Shinseki, 23 Vet. App. 382, 387 (2010) (it must be clear from some combination of an examiner’s and the Board’s analysis of the record, that an examiner has not invoked the phrase “without resort to mere speculation” as a substitute for full consideration of all pertinent and available medical facts). Further, with respect to all three disabilities, the examiner did not address whether either disability was likely aggravated beyond its natural progression by the service-connected hypertensive heart disease. Service connection for rhinitis With respect to the Veteran’s rhinitis, the Board observes that, while the Veteran indicated that he wished to withdraw this claim from appeal in a statement accompanying his August 2020 VA Form 9, he ambiguously perfected an appeal of the issue by selecting his desire to appeal all issues listed in the June 2020 Statement of the Case. The Veteran also proffered argument in favor of this claim in that same statement. Given this discrepancy, the Board considers the claim as still on appeal. The Veteran was afforded a VA examination for claimed rhinitis in April 2018. The examiner concluded that there was no objective evidence of allergic rhinitis of record. Notably, however, review of the Veteran’s VA treatment records indicates that he was treated for ongoing nasal allergy, including in February 2009 and March 2018. Additionally, a September 2017 VA otolaryngology treatment report noted that he was being seen for evaluation of a nasal obstruction. The report further indicated that a 2014 brain MRI revealed a small mucous retention cyst in the left maxillary sinus. Further, review of the Veteran’s STRs reveals multiple complaints of nasal congestion during service, and an assessment of allergic rhinitis in September 1985. The April 2018 VA examiner did not address this evidence; thus, the examiner’s conclusion that there was no objective evidence of allergic rhinitis of record is not probative. As there is still no adequate opinion of record addressing the etiology of the Veteran’s claimed rhinitis, remand is warranted to afford the Veteran a new VA examination to obtain an etiology opinion as to all current manifestations of rhinitis. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for a dental condition for treatment purposes The Veteran’s service connection claim for a dental condition has been adjudicated as a claim for service connection for treatment purposes. 38 C.F.R. § 3.381 clarifies that the Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental disorder for treatment purposes after the Veterans Health Administration (VHA) determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161, and asks that VBA make a decision on relevant questions. 38 C.F.R. § 3.381(a). VA’s Adjudication and Procedures, M21-1 specifically stipulates that VBA must only render determinations on service connection for dental treatment purposes when requested to do so by VHA. M21-1, Part IX, Subpart ii, 2.2.d. Here, it does not appear that VHA made any decision regarding the Veteran’s eligibility for dental treatment. Such a decision appears to be particularly cogent given the Veteran’s noted history of being homeless. See 38 C.F.R. § 17.161(d). Thus, the Board finds that a remand is necessary so that VHA may adjudicate the issue of service connection for dental treatment purposes in the first instance. In remanding the foregoing claims, the Board reminds the Veteran that, while VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA’s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). While the Veteran has presented numerous arguments contesting the validity of VA and VA-contracted examiner procedures and findings, and the Board has considered these arguments in reaching the determination that further development of these claims is warranted, the Board notes that the record also indicates that the Veteran has presented some difficulty for examiners in their efforts to obtain adequate examination findings. While the Board considers it important for the Veteran to ensure that a correct medical history is considered by examiners, the Veteran’s cooperation during requested examinations is vital to ensure proper development. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected hypertensive heart disease. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. Based on examination results and on the Veteran’s documented history and assertions the examiner should provide a full description of the Veteran’s disability. The examiner should specifically determine the Veteran’s current left ventricular ejection fraction and provide a full description of his disability and report all signs and symptoms associated with the disability, to include the associated workload in METs. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide a requested opinion, he or she should explain why. 2. Also, arrange for the Veteran to undergo new VA examinations for claimed aerophagia, sleep apnea, and DMII, by appropriate examiners (other than the examiner that conducted the May 2018 examinations), preferably examiners with experience in evaluating sleep apnea and DMII, as appropriate. Any and all indicated studies and tests deemed necessary by each examiner should be accomplished. The claims file should be made available to each examiner for review. Aerophagia: for any aerophagia currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved), the respective examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by service-connected hypertensive heart disease, or claimed sleep apnea, to include as a result of medications and other treatments for these disabilities. Sleep Apnea: the respective examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by service-connected hypertensive heart disease, or claimed aerophagia, to include as a result of medications and other treatments for these disabilities. DMII: the respective examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by service-connected hypertensive heart disease, or claimed sleep apnea, to include as a result of medications (to include by way of resulting Vitamin D deficiency) and other treatments for these disabilities. In addressing the above, each examiner must consider and discuss all pertinent medical and lay evidence of record, to include lay assertions as to the nature, onset, and development of these disabilities. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiners must also specifically address the multiple medical treatises, as pertinent, cited by the Veteran in September 2018 and November 2018 statements, and the statement accompanying his August 2020 VA Form 9. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Also, arrange for the Veteran to undergo a new VA sinus conditions examination by an appropriate examiner (other than the examiner that conducted the May 2018 VA examination). Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify any and all forms of rhinitis—to include allergic rhinitis—currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). The examiner should reconcile any finding that the Veteran has not suffered from rhinitis at any point pertinent to the current claim with VA clinical records reflecting treatment for nasal allergy, including in March 2018, and evaluation for a nasal obstruction in September 2017. (b.) Then, for each such identified form of rhinitis, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such had its onset during service, or is otherwise medically-related to the Veteran’s service, to include documented nasal congestion and allergic rhinitis during service. (c.) If any current form of rhinitis is not at least as likely as not etiologically related to the Veteran’s service, for each such form of rhinitis, the examiner should then provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by service-connected hypertensive heart disease, or xerostomia, to include as a result of medications to treat these disabilities. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include lay assertions as to the nature, onset, and continuity of rhinitis symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 4. Refer the matter of entitlement to service connection for a dental condition for treatment purposes to VHA for adjudication of Class eligibility in the first instance under 38 C.F.R. § 3.381. See 38 C.F.R. § 17.161. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.