Citation Nr: 21026118 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-04 986A DATE: April 29, 2021 ORDER Service connection for hypertension, as secondary to neurofibromatosis, is granted. Service connection for left anterior temporal mass (brain tumor), as secondary to neurofibromatosis, is granted. Entitlement to an increased initial disability rating of 50 percent for insomnia with symptoms of adjustment disorder and anxiety is granted. FINDINGS OF FACT 1. The Veteran’s hypertension was caused by his service-connected neurofibromatosis. 2. The Veteran’s brain tumor was caused by his service-connected neurofibromatosis. 3. The Veteran’s insomnia is manifested by occupational and social impairment with reduced reliability and productivity, due to such symptoms as short-term memory loss, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Occupational and social impairment due to symptoms contemplated at the 70 percent level were not manifested. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, as secondary to neurofibromatosis, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a brain tumor, as secondary to neurofibromatosis, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. 3. The criteria for entitlement to an increased initial disability rating of 50 percent for insomnia are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1991 to January 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2016 and October 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is of record. The Veteran’s Contentions The Veteran contends that his hypertension and brain tumor were caused by his service-connected neurofibromatosis. The Veteran also contends that he is entitled to an increased rating for his service-connected insomnia. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may also be granted where a disability is proximately due to or aggravated by an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability, and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Hypertension, as secondary to neurofibromatosis The record reflects that the Veteran has been diagnosed with hypertension and, as such, is able to establish the current disability element of service connection. The Veteran is also service connected for neurofibromatosis, thus establishing the second element for secondary service connection. The remaining question is whether the Veteran’s service-connected neurofibromatosis caused or aggravated his hypertension. The record contains contradictory opinions on the nexus element. A July 2016 VA examiner concluded that the Veteran had essential hypertension that was less likely than not due to the Veteran’s neurofibromatosis. The Veteran submitted positive nexus opinions from his private treating physician and VA treating physician. The private physician opined in a February 2021 letter that the medical literature supported the conclusion that the neurofibromatosis caused the Veteran’s hypertension. The VA physician opined in a February 2021 letter that the Veteran’s neurofibromatosis was a substantial cause of the Veteran’s hypertension. The VA treating physician noted that he had reviewed the Veteran’s medical history as well as the circumstances of his military service in reaching his conclusion, which was based on the lack of other risk factors for the Veteran and relevant medical literature. The Board finds the opinion of the VA treating physician entitled to probative weight. The VA physician reviewed the relevant records, based his opinion on his treatment of the Veteran and relevant medical literature and offered an adequate rationale for his conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board also finds that the opinion offered by the VA examiner is not entitled to probative weight because it is not supported by an adequate rationale. See Stefl, 21 Vet. App. at 124 (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). As the weight of the preponderance evidence weighs in favor of a finding that the Veteran’s hypertension was caused by his service-connected neurofibromatosis, the claim for service connection is granted. Brain Tumor, as secondary to neurofibromatosis A July 2015 MRI indicated the presence of a mass-like lesion in the medial left temporal lobe. The March 2016 VA examiner concluded that he could not determine whether the Veteran had a brain tumor without resort to speculation, and that a biopsy was necessary to determine if the finding on the MRI was benign or malignant. The Veteran’s private treating neurologist, however, has described the MRI finding as a tumor and associated the Veteran’s short-term memory loss and headaches with it. Based on the foregoing, the Board finds that there is sufficient evidence to support a conclusion that the Veteran has functional impairment caused by his brain tumor, and is able to establish the current disability element for service connection. As noted, the Veteran is service connected for neurofibromatosis, and is thus able to establish the second element for secondary service connection. As to causation, the Veteran has submitted the opinion of his private treating neurologist. The treating neurologist noted in a January 2017 treatment note that the Veteran’s brain tumor was “most likely due” to his neurofibromatosis. In a February 2021 statement the treating neurologist concluded that the Veteran’s brain tumor was a direct result of his neurofibromatosis. The neurologist noted and explained the relevant medical literature that supported his opinion. The Board finds the opinion of the treating neurologist entitled to probative weight. The neurologist is familiar with the Veteran’s course of treatment and offered an adequate rationale for his opinion that was supported by relevant medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Notably, there are no contradictory medical opinions of record. As the weight of the probative evidence supports a finding that the Veteran’s brain tumor is caused by his service-connected neurofibromatosis, service connection on a secondary basis is warranted, and the claim is granted. Entitlement to a disability rating of 50 percent for insomnia with symptoms of adjustment disorder and anxiety Generally, disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran was granted service connection for insomnia effective February 17, 2016, and was rated at 30 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9440. Diagnostic Code 9440 provides a 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting), inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). A review of the evidence reveals that the symptoms of the Veteran’s insomnia more nearly approximates occupational and social impairment with reduced reliability and productivity due to such symptoms as short term memory loss, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The Veteran was afforded a VA examination for his mental disorder in April 2016. The examiner noted that the Veteran had diagnoses of insomnia and adjustment disorder with anxiety. The Veteran described good relationships with his mother, wife and stepchildren and reported that he had no close friends but socialized occasionally with acquaintances. The Veteran reported that he interacted with his co-workers and had some difficulties getting along with them, but denied any problems interacting with customers and supervisors. The Veteran complained of sleep difficulties, anxiety, reduced concentration and low energy. The Veteran noted that he was able to make it to work on time and complete a full day with a generally positive attitude but that he experienced periods of irritability. The Veteran denied any incidents of aggression or violence and reported feelings of sadness and discouragement. The Veteran also reported low self-confidence, indecisiveness, issues in concentration and focus, problems with short term memory and chronic mild anxiety. The Veteran did not have any psychotic symptoms, hallucinations or paranoia. The VA examiner reported the Veteran’s symptoms as including anxiety, chronic sleep impairment, mild memory loss and difficulty in establishing and maintaining effective work and social relationships. The examiner also reported that the Veteran had fair insight, intact judgment, slightly impaired concentration, normal thought process, no audio-visual hallucinations and no suicidal ideation. The VA examiner summarized the Veteran’s occupational and social impairment as mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran testified at the January 2021 Board hearing that he did not socialize, got along with his coworkers but was easily aggravated and had issues with his spouse. The Veteran also testified that he got depressed but had no thoughts of hurting himself and that although he got aggravated at times, he avoided altercations. The Veteran also submitted lay statements from his wife and co-workers noting his anxiety, lack of concentration and irritability. VA treatment records reflect that the Veteran was seen regularly for mental health treatment and was generally described as polite, cooperative and had good hygiene with normal thought content, good insight and sound judgment. The Veteran often related strained relationships with his wife and stepson, poor sleep, short term memory problems, irritability, anxiety and depressive symptoms. The Veteran consistently denied paranoia, hallucinations or delusions and suicidal or homicidal ideation. Based on the foregoing, the Board finds the symptoms of the Veteran’s service-connected mental disorder most closely approximated the criteria for an increased 50 percent rating. The VA examination, VA treatment records and lay statements and testimony reflect that the Veteran experienced short-term memory loss, disturbances of mood and motivation and difficulty in establishing effective work and social relationships. The Veteran consistently reported short-term memory loss and noted that he experienced anxiety, depressive symptoms and low energy. The Veteran also described strained relationships with his family, limited social interaction and being easily aggravated at work. Accordingly, the Veteran is entitled to an initial 50 percent disability rating for his service-connected insomnia. The Board also finds that the record does not reflect social and occupational impairment with deficiencies in most areas or total social and occupational impairment so as to warrant higher disability ratings at any point during the claims period. The Veteran did not exhibit symptoms such as suicidal ideation, near continuous panic or neglect of personal hygiene. The Veteran’s thought content and judgment was consistently described as adequate or appropriate, he was noted to maintain good personal hygiene and was polite and cooperative. The Veteran was continuously employed by the same employer throughout the claims period and did not demonstrate symptoms such as persistent delusions or hallucinations, grossly inappropriate behavior or danger of hurting himself or others. The Veteran consistently denied suicidal or homicidal ideation. While the Veteran expressed periods of irritability, they did not include aggression or violence. Based on the foregoing, disability ratings of 70 or 100 percent are not warranted at any point during the appeal period. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.