Citation Nr: 21023502 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-37 133 DATE: April 20, 2021 ORDER Entitlement to service connection for obstructive sleep apnea, as secondary to service-connected adjustment disorder, is granted. REMANDED Entitlement to an earlier effective date for the award of service connection for adjustment disorder of mixed disturbance of emotion and conduct is remanded. Entitlement to an initial rating in excess of 30 percent prior to August 13, 2015, and in excess of 70 percent from August 13, 2015 to October 7, 2019, for service-connected adjustment disorder of mixed disturbance of emotion and conduct is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 13, 2015 is remanded. FINDING OF FACT The Veteran’s current sleep apnea is etiologically related to, or aggravated by, service-connected adjustment disorder. CONCLUSION OF LAW The criteria to establish service connection for a sleep apnea, as secondary to service-connected adjustment disorder, have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1991 through December 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously before the Board in November 2018 and June 2019, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The Board notes that during the pendency of this appeal, a December 2019 rating decision increased the Veteran’s rating for adjustment disorder to 100 percent effective October 8, 2019, and awarded a TDIU effective August 13, 2015. The Board has recharacterized the claims accordingly. Entitlement to service connection for obstructive sleep apnea. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury 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). Service connection may 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). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 8 Vet. App. 374 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks to establish service connection for obstructive sleep apnea. The Board notes that the Veteran was previously denied service connection on a direct basis in a June 2019 Board decision. As such, the Board will consider only entitlement to secondary service connection. VA treatment records show that in November 2012 the Veteran was diagnosed with obstructive sleep apnea based on the results of a sleep study. In January 2016, the Veteran submitted a Disability Benefits Questionnaire (DBQ) and opinion letter from a private physician. Dr. H.S. opined that, based on cited medical literature and medical records review, it is at least as likely as not that the Veteran’s service-connected adjustment disorder aided in the development of and permanently aggravates his sleep apnea. Dr. H.S. noted an August 2015 private mental health examination, which indicated the Veteran suffers from chronic sleep impairment. Citing several medical journals and studies, the examiner noted that psychiatric disorders contribute to and cause sleep apnea. The examiner also discussed how the Veteran is unable to use continuous positive airway pressure (CPAP) therapy due to claustrophobia associated with his depression. Dr. H.S. indicated this greatly aggravates the effects of the Veteran’s sleep apnea. The Veteran was provided a VA examination in December 2019. Following a review of the claims file and physical examination, the VA examiner opined that it was less likely than not that the Veteran’s sleep apnea was caused by his service-connected adjustment disorder. However, the December 2019 examiner did not offer an explicit opinion as to whether the Veteran’s sleep apnea had been aggravated by his adjustment disorder. In this case, the Board finds that the December 2019 VA examiner’s opinion is less probative than the January 2016 private opinion by Dr. H.S. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, the VA examiner failed to consider whether the Veteran’s sleep apnea was aggravated by his service-connected adjustment disorder, whereas Dr. H.S. provided a well-reasoned rationale and cited to supporting medical research. Therefore, as the competent medical evidence of record demonstrates that there is an etiological relationship between service-connected adjustment disorder and the Veteran’s sleep apnea, the claim for service connection for sleep apnea must be granted. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Earlier Effective Date – Adjustment Disorder In the November 2018 remand, the Board instructed the AOJ to take appropriate action on the Veteran’s October 2014 notice of disagreement (NOD) indicating disagreement with the effective date of service connection for his adjustment disorder. In a December 2019 VA memo, the AOJ acknowledged the Board directive and indicated the matter required attention. However, to date no action has been taken. Significantly, the December 2019 supplemental statement of the case (SSOC) does not reference the effective date claim. Because the October 2014 NOD remains unprocessed, a remand is necessary for issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App 238, 240-241 (1999).   Increased Rating – Adjustment Disorder The November 2018 remand also instructed the AOJ to assist the Veteran in obtaining private treatment records. In that regard, the record indicates prior treatment from R4 Therapeutic Solutions and the Veteran’s VA treatment records reflect that he sees a private mental health professional approximately once a month. The record shows that the AOJ attempted to obtain records from R4 Therapeutic Solutions in June 2019 and July 2019, but did not receive a response. While the record shows that the AOJ attempted to send letters to the Veteran notifying him in June 2019 and July 2019, both attempts were returned as undeliverable. Where VA cannot obtain non-federal records, VA should provide the claimant with notice of that fact. 38 C.F.R. § 3.159(e). Such notice must identify the records VA was unable to obtain, explain the efforts VA made to obtain the records, describe any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and notify the claimant that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). Here, there is no indication in the record that the Veteran was informed of the AOJ’s inability to secure R4 Therapeutic Solutions records as required under 38 C.F.R. § 3.159(e). Moreover, it appears that VA did not send the record requests to the correct address. In the July 2019 Report of General Information, the AOJ referenced a website indicating that R4 Therapeutic Solutions has both a physical address and a business mailing address, both located in Fayetteville, North Carolina. See id.; see also https://npino.com/behavioral-health/1013326222-r4-therapeutic-solutions%2C-pllc/. However, it appears the AOJ mailed the requests to a Durham, North Carolina address, and did not attempt to mail the requests to either Fayetteville, North Carolina address. Given these deficiencies, a remand is necessary to allow the AOJ to obtain pertinent private medical records. See 38 C.F.R. § 3.159(e); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection – Low Back Disability The Veteran seeks to establish service connection for a low back disability. Under applicable law, a medical examination and/or opinion is deemed “necessary” if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period, provided the claimant has the required service or triggering event to qualify for that presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Here, the Veteran has not been afforded a VA examination in connection with the present claim. The record contains evidence of a current disability, including a February 2012 magnetic resonance imaging study (MRI) showing L5/S1 disc herniation and a broad-based disc protrusion. In addition, the Veteran has made statements suggesting continuity of symptomatology since service, namely that his disability was incurred while wrestling, and that he sustained further low back injury while marching with a heavy rucksack. Various treatment records have indicated that the Veteran reported he had low back problems since his active service. See, e.g., November 2018 VA treatment record. This evidence, while not an adequate basis upon which to grant the Veteran’s claim, suggests that the Veteran’s current low back disability may be associated with service. As such, an examination is warranted. See, e.g., McLendon, 20 Vet. App. At 83. Because no examination has thus far been obtained, further development is necessary.   Service Connection – Hypertension In May 2013, the Veteran underwent a VA hypertension examination. Following examination, the examiner concluded that it was less likely than not that the Veteran’s hypertension was incurred in or caused by active duty service. In doing so, the examiner stated that there was no historical evidence of hypertension being assessed during active duty. The Board finds the May 2013 medical opinion is not sufficient to make an informed decision, in part because the examiner did not discuss the medical significance, if any, of the service treatment records showing elevated blood pressure readings of 134/64 (July 1991), 139/93 (October 1998), and 151/78 (April 1999). Accordingly, remand is required in order to obtain an addendum opinion. Service Connection – PTSD Additionally, the November 2018 remand instructed the AOJ to obtain a VA psychiatric examination to assess whether the Veteran has a diagnosis of PTSD related to an in-service stressor. In October 2019, the Veteran underwent a VA mental disorders examination. However, in preparing the examination report, the examiner did not discuss, as requested, whether the Veteran had a PTSD diagnosis or the Veteran’s alleged in-service stressors. Numerous VA and private treatment records document a current diagnosis of PTSD; however, the examiner did not discuss this evidence. Moreover, the examiner also did not discuss the Veteran’s self-reported stressors at all in the summary. In fact, the examiner noted she attempted to re-direct the Veteran when he mentioned his military stressors. Under these circumstances, the Board finds that a new remand is required to comply with the Board’s prior remand directives. Stegall, 11 Vet. App. at 271; Barr v. Nicholson, 21 Vet. App. 303 (2007). TDIU prior to August 13, 2015 The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the other remanded issues. Consequently, it must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Issue a SOC on the issue of entitlement to an earlier effective date for the award of service connection for adjustment disorder of mixed disturbance of emotion and conduct. Inform the Veteran of the requirements to perfect an appeal of that issue. If the Veteran perfects an appeal, return the case to the Board. 2. With any necessary assistance from the Veteran, including obtaining updated VA Form 21-4142 releases if necessary, undertake appropriate development to obtain outstanding records pertinent to the Veteran from R4 Therapeutic Solutions located in Fayetteville, North Carolina. Additionally, contact the Veteran and request that he identify, and provide appropriate releases for, any other private care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 4. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA lumbar spine examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s low back disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service. A complete medical rationale for all opinions expressed must be provided. 5. Further, arrange to have the Veteran scheduled for a VA hypertension examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s hypertension had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner should discuss the medical significance, if any, of the elevated blood pressure readings in service. A complete medical rationale for all opinions expressed must be provided. 6. Further, arrange to have the Veteran scheduled for a VA PTSD examination. The examiner should review the record. All indicated tests (to include psychological testing, if necessary) should be conducted and the results reported. After examining the Veteran and reviewing the record, to include the results of any necessary testing, the examiner should indicate whether the Veteran has met the DSM-IV or DSM-V diagnostic criteria for PTSD. If it is the examiner’s opinion that the diagnostic criteria for PTSD have not been met, the examiner must reconcile their opinion with the VA and private treatment records documenting a current diagnosis of PTSD. See, e.g., May 2013 private evaluation; February 2019 VA treatment record noting a positive PTSD screening. If it is the examiner’s opinion that the diagnostic criteria for PTSD have been met, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that PTSD is related to an in-service stressor related to the Veteran’s active service, to include allegations of personal assault. A complete medical rationale for all opinions expressed must be provided. 7. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Sonja A. Mishalanie 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.