Citation Nr: 22015643 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 16-25 565 DATE: March 18, 2022 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a cervical spine condition, to include as secondary to the Veteran's service-connected knee disability, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence persuasively establishes the Veteran's hypertension was not present until more than one year following his discharge from active duty and is not etiologically related to any incident of such. 2. The evidence persuasively establishes the Veteran's cervical spine disability was not present until more than one year following his discharge from service and is neither etiologically related to active duty nor caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for establishing entitlement to service connection for a cervical spine condition, to include as secondary to the Veteran's service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy Reserve, including a period of active duty for training (ACDUTRA) from January 1987 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2013 and October 2015 rating decisions from a Department of Veteran's Affairs (VA) Regional Office (RO). In April 2016, the Veteran was admitted to a VA facility from a private hospital, arriving intubated and on mechanical ventilation for treatment of acute hypoxic respiratory and anoxic brain injury. VA medical records reflect that since his admission, he has remained unresponsive to external stimuli, fully ventilator-dependent, and electroencephalogram (EEG) tests over time demonstrated no improvement from absence of electrical activity consistent with his vegetative state. Accordingly, VA subsequently recognized the Veteran's father as his fiduciary and the fiduciary-father is the appellant in this case When this case was last before the Board in April 2021, it was remanded for additional development. Specifically, the RO was instructed to obtain VA medical opinions regarding the etiology of his claimed conditions. Appropriate medical opinions were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the April 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hypertension Establishing service connection generally requires 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after 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). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis The appellant contends that the Veteran's claimed hypertension disability is the result of his active-duty service. The Board notes that the Veteran has a current diagnosis of hypertension. See January 2021 Active Problems list. Therefore, the central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has a current hypertension diagnosis, the competent medical evidence of record does not support that these disabilities were incurred in service or otherwise related to service. The Veteran's STRs contain no complaints, treatment, or diagnoses of this condition. However, while a June 1987 service treatment record did indicate an elevated blood pressure of 155/94, there are no treatment records noting hypertension while the Veteran was in service, and no medical examiner has given an opinion linking the Veteran's current hypertension to his active-duty service. The Veteran was first diagnosed with hypertension in May 2006, approximately 19 years after his period of service. Among post-service VA and private treatment records, the Veteran was diagnosed with labile hypertension in May 2006. During visits with a private physician in March 2007, his blood pressure was recorded as 162/98 and as 166/110 two weeks later. During the latter visit, the Veteran's private physician diagnosed him with hypertension. A January 2011 VA primary care record indicated that the Veteran had not been on medication for his labile hypertension, and he was started on atenolol-chlorthalidone. A May 2019 Board Remand directed the AOJ to schedule the Veteran for a VA examination to determine the etiology of his hypertension. However, because the Veteran has been unresponsive to external stimuli and ventilator-dependent since April 2016, he could not participate in a VA examination and the examination was cancelled. In response to the April 2021 Board Remand, the RO obtained a June 2021 VA medical opinion regarding the etiology of the Veteran's hypertension disability. The examiner opined that the Veteran's hypertension was less likely than not (less than a 50 percent probability) etiologically related to his active-duty service. The rationale provided was that occasional elevations in blood pressure are normal and do not meet the diagnostic criteria for hypertension. The examiner continued that after a review of the medical record and the Veteran's STRs there were no evidence of a diagnosis, treatment, or symptoms suggestive of hypertension; nor did the Veteran meet the criteria for a hypertension diagnosis while in active duty, or within one year of separation from service. The Board weighs the above-mentioned June 2021 VA medical opinion against the Veteran's lay contentions that his hypertension is due to service. The Veteran is competent to report symptoms he directly observed because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, neither the Veteran nor his family are competent to offer an opinion as to the etiology of his current hypertension due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the Board finds the June 2021 medical opinion, which opined against a link between the Veteran's currently diagnosed disability and his service, to be of high probative value. Additionally, the Board again notes that the Veteran was not diagnosed with hypertension until many years after he left active-duty service. Thus, the probative evidence of record is persuasivvely against the Veteran's claim for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with hypertension while in service, or within a year after service, and there is no medical opinion in the record linking his current disability to his active-duty service. Therefore, the claims must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the evidence is persuasively against the claim. Entitlement to service connection for a cervical spine disability The appellant is seeking service connection for a claimed cervical spine condition which he claims is etiologically related to the Veteran's active-duty service. In the alternative, the Appellant claims that this disability could be etiologically related to the Veteran's service-connected right knee. The Board notes that the Veteran has current diagnosis of cervical degenerative disc disease. See April 2012 MRI report. Therefore, the central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has a currently diagnosed cervical spine disability, competent medical evidence of record does not support that this disability was incurred in service or otherwise related to service. The Veteran's STRs contain no complaints, treatment, or diagnosis of a cervical spine condition. On Navy Reserve enlistment examination in August 1986, the Veteran's spine and neurologic function were reported as normal on clinical evaluation. In a November 1987 Navy Reserve annual report of medical history, he reported he was in "good health other than deranged knee." He denied any swollen or painful joints, recurrent back pain, or neuritis. On examination the same day, his spine and neurologic function were reported as normal on clinical evaluation. There are no treatment records for a cervical condition while the Veteran was in service, and no medical examiner has given an opinion linking the Veteran's current disabilities to his active-duty service. Additionally, the first documented complaint of neck pain was in August 2008, approximately 21 years after he left active service. The Veteran's post-service private and VA treatment records are silent for complaints, treatment, or diagnoses of any cervical condition until 2008 as noted above. In August 2005, he presented to VA urgent care for evaluation of a rapid heartbeat and during a review of systems, he denied any neck pain. During an October 2006 VA orthopedic consultation related to pain, numbness, and tingling in his hands, forearms, and elbows, the Veteran stated he had "no complaints of neck pain." Contemporaneous private treatment records dated from May 2005 to May 2007 reflect the Veteran was receiving pain medications and/or muscle relaxants, including hydrocodone/acetaminophen (Norco, Vicodin), Soma (carisoprodol), Flexeril, and Mobic (meloxicam), prescribed for carpal tunnel syndrome and right knee pain. The records were silent for complaints, diagnosis, or treatment for neck problems. The first documented complaint of any neck pain was in August 2008 during an in-patient VA psychiatric admission. The Veteran reported he was doing well, and his only complaint was chronic neck and back pain. During a December 2008 VA primary care visit, the Veteran told the intake nurse that he may have hurt his neck during a trampoline accident; he also disclosed a history of back pain, Crohn's disease, and knee pain. He told the examining physician that he continued to have diffuse arthralgias, especially in his low back, and that he had a trampoline injury three months earlier and still had neck pain from the accident. An April 2009 follow-up record reflects the Veteran's report of continued neck (and back) pain since he "fell on his head" around September 2008 while jumping on a trampoline. The impression of a March 2009 cervical spine MRI study was multilevel degenerative changes, most pronounced at C5-C6 with evidence of mild to moderate spinal stenosis and mild to moderate bilateral neural foraminal stenosis. During a June 2009 primary care visit, he reported having moderately severe pain in the back of his neck and shoulders after lifting heavy coolers one week earlier. Findings from a June 2009 x-ray study included mild spurring anteriorly at C5-C6. During a medical screening in September 2009 upon booking at a local jail, the Veteran stated he had bulging discs in his neck at C5 and C6 diagnosed about seven months earlier; he was wearing a neck brace, which he had had for approximately four months. In October 2009, he again disclosed having herniated discs to his neck since landing on his head while doing a back flip on a trampoline. Subsequent VA treatment records and imaging reports documented ongoing evaluation and treatment for cervical spine arthritis with neural foraminal stenosis, also diagnosed as cervical radiculopathy. In correspondence received in May 2011, the Veteran's friend of 35 years, S.H., related that the Veteran experienced "severe pain in his neck due to deterioration of discs." In a letter received in December 2013, S.H. described herself as the Veteran's "common law friend" and expressed her belief that his neck problem was due to his service-connected right knee disability. A May 2013 VA opinion was received in which the examiner concluded the Veteran's claimed musculoskeletal conditions are not proximately due to or the result of his service-connected right knee disability. He stated the Veteran underwent a right meniscus repair surgery in 2003 and the current medical literature supports that a pathological extremity joint does not affect the opposite joint or joints above or below. However, the examiner did not offer an aggravation opinion. In April 2016, the Veteran attempted suicide by hanging. VA treatment records detail he was initially transported to a private hospital where computed tomographic angiography (CTA) revealed no evidence of fracture to his cervical spine. Because he was transferred to the VA hospital in a cervical collar and had not been evaluated by the private neurosurgery team, and because family members wished to consider tracheostomy and percutaneous endoscopic gastrostomy (trach and peg), VA neurosurgery consultation included additional imaging, which confirmed he did not sustain a cervical spine fracture, and he was cleared for removal of the cervical collar. A June 2018 private medical opinion from a Dr. H.S. indicated the Veteran's musculoskeletal disorders are related to the long-term altered gait and poor instability caused by his right knee disability. However, the Veteran's cervical disorder was not discussed in the opinion. In response to the Board's April 2021 Remand, the Veteran was provided with a June 2021 VA Medical Opinion in order for an examiner to opine on the etiology of the Veteran's cervical spine disability. The examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran's cervical spine condition was etiologically related to his active-duty service. Further, the examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's cervical disability was aggravated by his service-connected right knee. The rationale provided was that there is no clear evidence from the review of orthopedic literature to suggest that an injury to one joint would have any significant or permanent impact or aggravation on another joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. The examiner continued that the condition of the cervical spine is due to something intrinsic to the cervical spine and not the Veteran's right knee. The Board weighs the above-mentioned VA examinations against the Veteran's lay contentions that cervical spine is due to service, to include as secondary to a service-connected disability. The lay reporters are competent to report symptoms they directly observed because this requires only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, neither the Veteran nor his family are competent to offer an opinion as to the etiology of his current cervical spine due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the Board finds the VA medical opinions, which opined against a link between the Veteran's currently diagnosed cervical spine disability and his service, to include his service-connected conditions, to be of high probative value. With regard to the private opinion from Dr. H.S., the Board noted that the private examiner did not discuss or opine on the Veteran's cervical spine disability in formulating his opinion. Additionally, the Board again notes that the Veteran was not diagnosed with, nor did he complain of, a cervical disability until many years after he left active-duty service. Further, no medical examiner has provided a nexus opinion which links the Veteran's condition to his active-duty service, to include as due to his service-connected disabilities. Thus, the probative evidence of record is persuasively against the Veteran's claim for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with a cervical spine condition while in service, or within a year after service, and there is no medical opinion in the record linking his current disability to his active-duty service, to include as secondary to his service-connected right knee disability. Therefore, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the evidence is persuasively against the claim. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea Although the Board sincerely regrets the additional delay a remand is required to ensure proper development of the Appellant's claim. In response to the Board's April 2021 remand, the RO obtained June 2021 medical opinions from a psychologist regarding the etiology of the Veteran's sleep apnea. The examiner opined that the Veteran did not have an additional sleep disorder under the DSM-5, however, the examiner continued that sleep apnea is a medical disability, not a mental health one, and as such a medical professional's opinion on etiology would be required. As such, the RO obtained an August 2021 Addendum opinion from a Nurse Practitioner regarding the etiology of the Veteran's sleep apnea. The examiner opined that the Veteran's sleep apnea was less likely than not (less than a 50 percent probability) etiologically related to his active-duty service. The rationale provided was that the Veteran's medical records were silent for symptoms or concerns of sleep apnea until at least 2012. Further, the examiner noted that the Veteran denied any sleep issues during his periods of active service. The examiner noted that the Veteran reported sleep issues with regard to psychiatric impairment but had denied sleep apnea or sleep apnea symptoms including during anesthesiology reports prior to surgery. The examiner noted the Veteran's sister's lay statements regarding the Veteran's sleeping conditions after his Naval Reserve service and noted that what the sister witnessed was more consistent with insomnia, rather than sleep apnea. However, despite noting a link between the Veteran's sleep disturbance and his psychiatric disability, the August 2021 examiner did not proffer an opinion regarding whether the Veteran's sleep apnea was secondary to, or aggravated by, his service-connected psychiatric disability. As such, the Board finds an additional medical opinion is required regarding the etiology of the Veteran's sleep apnea. 2. Entitlement to a TDIU The appellant has alleged that the Veteran is entitled to a TDIU for the period on appeal. The Board notes the issue of entitlement to a TDIU rating must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion by an examiner, who has yet to opine on the Veteran's condition, with sufficient expertise to address the etiology of the Veteran's claimed sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. The Board notes that the Veteran has been in a vegetative state and ventilator-dependent since April 2016. Do not schedule an in-person examination. Following a review of the relevant records and lay statements, the examiner should state an opinion regarding the following: - Whether the Veteran's claimed sleep apnea disability is at least as likely as not (a 50 percent probability or greater) proximately due to, or aggravated by, his service-connected psychiatric disabilities. For purposes of this opinion, the examiner must discuss the relevant lay evidence of record, including the statements by the Veteran's sister. The Board notes that aggravation need not be a permanent worsening of the disability. A temporary worsening of a disability may constitute aggravation. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiners should identify the additional information that is needed. 2. Thereafter, the Agency of Original Jurisdiction (AOJ) must complete any development necessary to readjudicate the matter of entitlement to a TDIU, to include all information pertinent to the Veteran's complete educational and occupational history. 3. Thereafter, the AOJ must readjudicate the appellant's appealed issues in light of the totality of the record. If any benefit sought is not granted to the fullest extent, the AOJ must provide a copy of the readjudication to the appellant, and his private attorney and afford them an appropriate time to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.