Citation Nr: 21014492 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-41 953 DATE: March 12, 2021 ORDER Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a headache disorder is granted. Entitlement to an initial disability rating greater than 80 percent for diabetic nephropathy is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disability ratings (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s obstructive sleep apnea was aggravated by his service-connected posttraumatic stress disorder (PTSD). 2. The evidence is at least in equipoise as to whether the Veteran’s headache disorder was aggravated by his service-connected PTSD. 3. Since the initial grant of service connection, the Veteran’s diabetic nephropathy has not been manifested by renal dysfunction requiring regular dialysis or precluding more than sedentary activity; persistent edema and albuminuria; BUN more than 80mg% or creatinine more than 8mg%; or markedly decreased function of the kidney or other organ systems. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea, to include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for a headache disorder, to include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for an initial disability rating greater than 80 percent for diabetic nephropathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.7, 4.115a, 4.115b, Diagnostic Code 7541. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from March 1966 to September 1972. In December 2020, prior to recertification of the appeal to the Board, the Veteran’s prior representative, J. Michael Woods, withdrew representation through a written statement sent to the Agency of Original Jurisdiction (AOJ). The letter reflects that the Veteran was notified of the withdrawal. 38 C.F.R. § 14.631(c). The Veteran has not appointed new representation since this withdrawal. As such, the Board will proceed with adjudication of the appeal with the Veteran unrepresented. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to service connection for sleep apnea and entitlement to service connection for a headache disorder Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, 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. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). After thorough consideration of the evidence of record, the Board concludes that service connection for a headache disorder and obstructive sleep apnea is warranted. There are current diagnoses of tension headaches and obstructive sleep apnea, as noted in October 2018 private medical assessments. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the probative evidence of record is at least in equipoise as to whether the Veteran’s headache disorder and sleep apnea are related to his service-connected PTSD. 38 U.S.C. § 1113(b); 38 C.F.R. §§ 3.303; see Allen, 7 Vet. App. 439 (holding that secondary service connection requires that evidence is sufficient to show that the current disability was either caused or aggravated by a service-connected disability). In that regard, in October 2018, H.S., M.D. opined that the Veteran’s headaches and sleep apnea were aggravated by his service-connected PTSD. Dr. H.S. explained that medical research relates psychiatric disorders with obstructive sleep apnea, and that the Veteran reported an inability to use his prescribed CPAP device to treat his sleep apnea due to feeling claustrophobic by the mask, which aggravates the severity of his sleep apnea. Dr. H.S. also explained that medical research has shown that depression and anxiety facilitate the onset of headaches and that psychological stress can be a predisposing factor that contributes to the onset and aggravation of a headache disorder. The October 2018 opinions were based upon physical examination of the Veteran, review of the evidence in the claims file, and consideration of and citation to pertinent medical treatises. Thus, the Board finds the October 2018 medical opinions to be probative. Although a January 2021 VA examiner opined that the Veteran’s sleep apnea was not caused or aggravated by his PTSD, the rationale provided by the examiner was conclusory in nature. In that regard, the examiner noted merely that “the link between PTSD and [obstructive sleep apnea] is not clear.” The examiner did not discuss the medical treatise evidence cited by Dr. H.S. in any meaningful way; nor did the examiner address the impact of the Veteran’s inability to use his CPAP machine due to feelings of claustrophobia. Similarly, while an August 2019 VA examiner concluded that the Veteran’s headaches were not causally related to his service-connected psychiatric disorder, the examiner provided no rationale for the opinion and failed to address the medical treatise evidence cited by Dr. H.S. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s headache disorder and obstructive sleep apnea were caused or aggravated by his service-connected PTSD. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, entitlement to service connection for a headache disorder and obstructive sleep apnea is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). 2. Entitlement to an initial disability rating greater than 80 percent for diabetic nephropathy Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for diabetic nephropathy was granted by the Agency of Original Jurisdiction (AOJ) in a May 2014 rating decision, and a 60 percent disability rating was assigned, effective December 4, 2013, under 38 C.F.R. § 4.115b, Diagnostic Code 7541. In a January 2021 rating decision, the AOJ granted an increased disability rating of 80 percent for diabetic nephropathy, effective December 4, 2013, under Diagnostic Code 7541. The Veteran’s diabetic nephropathy is rated as 80 percent disabling throughout the entire rating period under 38 C.F.R. § 4.115b, Diagnostic Code 7541. Under this diagnostic code, renal involvement in diabetes mellitus is rated as renal dysfunction. 38 C.F.R. § 4.115b. Under 38 C.F.R. § 4.115a, renal dysfunction with persistent edema and albuminuria with BUN 40 to 80 mg% or creatinine 4 to 8 mg% or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating; and renal dysfunction requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria or BUN more than 80 mg% or creatinine more than 8 mg% or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. 38 C.F.R. § 4.115b. With respect to whether an initial rating greater than 80 percent is warranted based on renal dysfunction, the Board finds that none of the manifestations associated with a 100 percent rating are present in this case. A March 2014 VA examination reflects that the Veteran was prescribed Benazepril for his kidney disorder, and that the kidney disorder resulted in renal dysfunction. The examiner reported that the Veteran did not require regular dialysis, had no signs or symptoms due to renal dysfunction, and did not have hypertension or heart disease due to renal dysfunction. The renal tubular disorder was not symptomatic and there were not frequent attacks of colic with infection. Laboratory testing was conducted in August 2013, which showed normal BUN at 17 mg/dL, elevated creatinine at 1.53 mg/dL, and abnormal EGFR at 55.2. A spot urine microalbumin/creatinine test was noted to be abnormal. A June 2020 VA examination report is of record, but the report reflects that it was based solely upon reviewed records, and not on an in-person examination of the Veteran, because of the COVID-19 pandemic. The VA examiner reported that the Veteran’s treatment plan did not include taking continuous medication, but that the Veteran had renal dysfunction. There was no evidence that the Veteran required regular dialysis and he did not have any signs or symptoms due to renal dysfunction. The Veteran also did not have hypertension or heart disease due to renal dysfunction and the renal tubular disorder was not symptomatic. There were not frequent attacks of colic with infection. Laboratory testing conducted in August 2019 reflects that BUN was normal at 15 mg/dL, creatinine was elevated at 1.42 mg/dL, EGFR was 59, micro albumin was greater than 500 and protein was 1262.2. A January 2021 VA examination shows that the Veteran reported fatigue as symptom of his diabetic nephropathy. The examiner reported that he was not prescribed continuous medication for his diagnosed kidney disorder, but that he did have renal dysfunction. He did not require regular dialysis, but exhibited signs or symptoms due to renal dysfunction including constant proteinuria (albuminuria), generalized poor health due to renal dysfunction, lethargy due to renal dysfunction, and weakness due to renal dysfunction. There was no evidence of edema, anorexia, weight loss, limitation of exertion, ability to perform only sedentary activity due to persistent edema, or markedly decreased function of other organ systems (including the cardiovascular system) caused by renal dysfunction. The examiner noted that the Veteran did not have hypertension or heart disease due to renal dysfunction and that the renal tubular disorder was not symptomatic. There were not frequent attacks of colic with infection. Laboratory testing conducted in December 2020 revealed that BUN was normal at 15 mg/dL, creatinine was abnormal at 1.45 mg/dL, EGFR was normal at 58, and albumin was abnormal at 30. VA treatment records reveal laboratory findings of a BUN level of 19 mg/dL and a creatinine level of 1.41 mg/dL in June 2010 ; a BUN level of 21 mg/dL and a creatinine level of 1.57 mg/dL in August 2011; a BUN level of 13 mg/dL, a creatinine level of 1.34 mg/dL, and EGFR of 64.1 in July 2014 ; a BUN level of 15 mg/dL and creatinine levels of 1.42 mg/dL, and EGFR of 59 in August 2019. None of the pertinent evidence of record shows that the Veteran has required regular dialysis for renal dysfunction. Additionally, the VA examination reports and treatment records do not show evidence of persistent edema or albuminuria with BUN of more than 80 mg% or creatinine levels of more than 8mg%. The Veteran’s BUN has been in the normal range throughout the rating period, and his highest creatinine level was measured in August 2011 when laboratory reports showed a creatinine of 1.57mg%. Moreover, the competent evidence does not indicate markedly decreased function of the kidney or other organ systems. The Board acknowledges the Veteran’s reports that he experiences fatigue due to his kidney disorder. However, fatigue, but generalized poor health characterized by lethargy is contemplated within the current 80 percent disability rating based on renal dysfunction. 38 C.F.R. § 4.115a. As the evidence of record does not show that the Veteran meets the rating criteria for an initial disability rating greater than 80 percent for his diabetic nephropathy, an initial rating in excess of 80 percent for diabetic nephropathy is not warranted. 38 C.F.R. § 4.115a, 4.115b, Diagnostic Code 7541. The preponderance of the evidence is against a rating in excess of 80 percent. Accordingly, the benefit of the doubt rule is not for application in resolution of the matter on appeal. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU is remanded. In its May 2019 remand, the Board found that the issue of entitlement to a TDIU was raised by the record, and remanded the matter to the AOJ to provide the Veteran an opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Although the AOJ sent the Veteran a duty to assist letter in June 2019 requesting that he complete and return a VA Form 21-8940, the Veteran did not respond to the AOJ’s letter. Despite the Veteran’s failure to provide the requested VA Form 21-8940, the issue of entitlement to a TDIU remains in appellate status. However, the AOJ did not address the issue of entitlement to a TDIU in the January 2021 Supplemental Statement of the Case (SSOC). Thus, the RO must conduct an initial review of the evidence of record and issue an SSOC for the issue of entitlement to a TDIU. See 38 C.F.R. § 19.31. The matters are REMANDED for the following action: Adjudicate the issue of entitlement to a TDIU, with consideration of all the evidence of record. If the benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the issues to the Board, if otherwise in order. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.