Citation Nr: 22040133 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-20 336 DATE: July 13, 2022 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) as secondary to posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to PTSD, is granted. Entitlement to an initial 70 percent rating for PTSD is granted. REMANDED Entitlement to service connection for Meniere's disease and positional vertigo, to include as service-connected disabilities, is remanded. FINDINGS OF FACT 1. The evidence is in relative equipoise with respect to whether the Veteran's GERD is aggravated by his service-connected PTSD. 2. The evidence is in relative equipoise with respect to whether the Veteran's obstructive sleep apnea is aggravated by his service-connected PTSD, to include weight gain caused by the PTSD. 3. The symptoms and overall impairment caused by the Veteran's PTSD more nearly approximate occupational and social impairment with deficiencies in most areas; however, they have not more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GERD are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial higher rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to May 1971. His medals include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) from September 2015 and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board denied the Veteran's claims for service connection for Meniere's disease, GERD, and sleep apnea. In a September 2020 Memorandum Decision, the Court of Appeals for Veterans Claims (CAVC) vacated the Board's June 2019 decision to the extent that it denied entitlement to service connection for Meniere's disease, GERD, and sleep apnea and remanded the claims to the Board for further adjudication. In an April 2021 decision, the Board remanded the issues of entitlement to service connection for Meniere's disease, GERD, and sleep apnea for further development of the record. The Board also granted an initial 50 percent rating for PTSD. In a March 2022 Joint Motion for Partial Remand (JMPR), the parties requested that the Court vacate the part of the April 2021, Board decision which denied entitlement to an initial rating over 50 percent for PTSD and remand this issue for readjudication consistent with the terms of this joint motion. The JMPR was granted in a March 2022 Order. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for GERD as secondary to PTSD, is granted. The Veteran contends that his GERD is related to his service-connected PTSD. As the Board will discuss below, entitlement to service connection for GERD is warranted on a secondary basis based on aggravation. Thus, there is no need to discuss service connection on a direct basis. In this case, VA and private treatment records confirm a current GERD diagnosis, and a July 2016 private examiner opined that it is at least as likely as not that his current GERD is secondary to, related to, and/or aggravated by his PTSD. In support of this opinion, the examiner cited to several medical studies/literature which found that "certain stressful life events have been associated with the onset or symptom exacerbation in some of the most chronic disorders of the digestive system, including GERD." Another cited study found that stress can amplify the severity of heartburn, causing an aggravation. The examiner also cited to a medical journal article which noted that there was a large body of evidence supporting the link between psychological distress and GERD. The examiner further stated, "The Veteran has experienced events and/or traumas during his active service which has led to his current PTSD diagnosis. The Veteran has dealt with the reoccurring stress of his PTSD prior to the formal diagnosis since his separation from military service, which has resulted in or aggravated his gastroesophageal reflux disease." The examiner concluded, "Therefore, per the Veteran's SMRs, post-service medical records, current medical literature, current diagnosis and symptomatology of GERD and formal diagnosis of [PTSD], the Veteran's [GERD] condition is related to and/or at least aggravated by his service related posttraumatic stress disorder." The Board finds the July 2016 opinion to be probative as to the issue of aggravation as it was rendered after a thorough review of the Veteran's medical history and is supported by sound medical rational, including citation to several medical studies/literature, all of which speak to exacerbation/aggravation of GERD by psychological stressors (which, in this case, is accounted for by his service-connected PTSD and related symptoms). The Board acknowledges the July 2017 VA opinion which found that GERD was less likely than not proximately due to or the result of PTSD. The Board finds this opinion to be of little probative value as it failed to specifically address aggravation and did not support its rationale with any medical literature or Veteran-specific evidence or facts. Most recently, a July 2021 VA examiner opined that it was less likely than not that GERD was caused or aggravated by his PTSD. The examiner reasoned, "Although GERD and PTSD has been associated, like is shown in the literature submitted by the lawyers in 2016, there has not been consensus in the scientific medical research that PTSD causes GERD. It can worsen the symptoms, but not be the direct cause. In this specific case, there is not evidence of aggravation of the GERD. It has followed the natural course of the disease, having symptoms fairly controlled on medication." The Board finds the July 2021 VA opinion to be probative as it is based on review of the record and contains a rationale that cites to the facts of the Veteran's case and pertinent medical principles. However, the Board can find no reason to conclude that one opinion is more probative than the other on the issue of whether the Veteran's GERD is aggravated by his PTSD. Therefore, the Board finds that the July 2016 and July 2021 opinions are in approximate balance, and the benefit of the doubt is resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, entitlement to service connection for GERD as secondary to PTSD is warranted, and the benefit sought on appeal is granted. In so finding, the Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. 2. Entitlement to service connection for obstructive sleep apnea as secondary to PTSD, is granted. The Veteran contends that his sleep apnea is related to his service-connected PTSD. As the Board will discuss below, entitlement to service connection for sleep apnea is warranted on a secondary basis based on aggravation. Thus, there is no need to discuss service connection on a direct basis. In this case, VA and private treatment records confirm a current obstructive sleep apnea diagnosis, and a July 2016 private examiner opined that it is at least as likely as not that his current sleep apnea is secondary to, related to, and/or aggravated by his PTSD. In support of this opinion, the examiner provided an outline of the Veteran's increasing weight, from the time of discharge to the time of his 2015 sleep apnea diagnosis. The examiner also cited to medical literature, including an article from the Journal of Clinical Sleep Medicine which found that "Obesity is associated with mood, anxiety, and somatoform disorders as well as elevations in psychological distress. In addition, obesity is one of the leading risk-factors for OSA." The examiner noted that the Veteran did, in fact, suffer from weight gain following his in-service stressors (PTSD) and remains overweight (see above timeline). The examiner noted that primary risk factors for OSA included: obesity/weight gain, male sex, and a diagnosis of diabetes mellitus; all of which this veteran has. The examiner cited to another medical study which found that severe OSA was much more likely to be present in patients with a high body mass index (BMI). The examiner stated, "The medical literature has well established that being overweight is closely correlated with obstructive sleep apnea due to obesity-induced pathophysiological anatomy changes. Specifically, the pharyngeal critical closing pressure is associated with obesity and hyoid position. Tongue dimensions, pharyngeal length, and the mandibular plane to hyoid distance are associated with obesity variables, and are factors mediating upper airway collapse in obstructive sleep apnea." The examiner also cited to a 2006 study on Veterans which found that those with OSA and its concordant risk factors also exhibited significantly elevated rates of PTSD, depression, and diabetes mellitus. Another cited to a study noted, in pertinent part, "Previous work has documented a relation between sleep apnea and psychopathology, however, limited work has examined this among veterans, a sample of individuals at elevated risk for both sleep apnea and psychopathology. The current study examines the relations between sleep apnea and the likelihood of being diagnosed with a psychological condition among veterans throughout the VA Health Care System. Results indicate a strong association between mood and anxiety disorders and sleep apnea among obese veterans." With respect to Vietnam era war Veterans, in particular, another cited to study indicated, "Previous work has demonstrated the relatively high prevalence of risk factors for cognitive impairment, such as sleep disordered breathing (SDB) and obesity, in Vietnam War era veterans with post-traumatic stress disorder (PTSD)," and concluded, "SDB worsened in a group of veterans of the Vietnam War with PTSD over a 3-year period." The July 2016 private examiner concluded, "per the Veteran's SMRs, post-service civilian medical records, current medical literature that supports a nexus between OSA, PTSD, and weight gain, current diagnosis and symptomatology of OSA, and service related diagnosis of PTSD, it is as least as likely than not (a 50%/50% probability) that the veteran's Obstructive Sleep Apnea (OSA) Condition is secondary to, related to, and/or aggravated by his service related Posttraumatic Stress Disorder (PTSD)." The Board finds the July 2016 opinion to be probative as to the issue of aggravation as it was rendered after a thorough review of the Veteran's medical history and is supported by sound medical rational, including citation to several medical studies/literature, all of which speak to the relationship between weight gain, PTSD, and OSA. See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020) (service connection may be established on a secondary basis for a disability which would not have occurred but for obesity that was caused or aggravated by a service-connected disability). The Board acknowledges the July 2017 VA opinion which found that OSA was less likely than not proximately due to or the result of PTSD. The Board finds this opinion to be of little probative value as it failed to specifically address aggravation and did not support its rationale with any medical literature or Veteran-specific evidence or facts. Most recently, a July 2021 VA examiner opined that it was less likely than not that OSA was caused or aggravated by his PTSD. The examiner reasoned that, despite several studies trying to link sleep apnea and PTSD, it has not been proven that PTSD causes OSA. The examiner acknowledged that obesity was the main cause of OSA. He stated, "However, obesity is a diagnosable and recognizable health problem, that results from a combination of causes and contributing factors, including individual factors such as behavior and genetics. Therefore, it cannot be etiologically linked to one cause solely." The examiner stated that the research submitted has shown an association, which does not equal causation. The examiner stated that the obesity as a pathological entity "is multifactorial" and "is most commonly caused by excess energy consumption (dietary intake) relative to energy expenditure (energy loss via metabolic and physical activity), the etiology of obesity is highly complex and includes genetic, physiologic, environmental, psychological, social, economic, and even political factors that interact in varying degrees to promote the development of obesity." The examiner concluded that OSA was not aggravated in this Veteran and that it has followed the natural progression of this condition, with persistent day time somnolence due to non-use of the CPAP machine. The Board finds the July 2021 VA opinion to be probative as it is based on review of the record and contains a rationale that cites to the facts of the Veteran's case and pertinent medical principles. However, the Board can find no reason to conclude that one opinion is more probative than the other on the issue of whether the Veteran's sleep apnea is aggravated by his service-connected PTSD, to include weight gain caused by the PTSD. Therefore, the Board finds that the July 2016 and July 2021 opinions are in approximate balance, and the benefit of the doubt is resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. Thus, entitlement to service connection for OSA as secondary to PTSD is warranted, and the benefit sought on appeal is granted. In so finding, the Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. 3. Entitlement to an initial 70 percent rating for PTSD is granted. Increased Ratings The Veteran's PTSD is rated as 50 percent disabling under Diagnostic Code 9411 throughout the entire appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), 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-term 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. Id. 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. Id. A maximum 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 behaviour; 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. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Upon review of the record and after resolving all doubt in the Veteran's favor, the Board finds that an initial rating of 70 percent is warranted throughout the appeal period. The Veteran submitted a disability benefits questionnaire (DBQ) and private psychological evaluation dated July 2016, which indicates that the Veteran endorsed symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. The examiner additionally noted that the Veteran exhibited the following symptoms as associated with his PTSD: reduced activity, impaired sleep, depression, social withdrawal, irritability, fatigue, memory and cognitive impairment, poor self-esteem, less interest in sex, relationship problems, history of alcohol abuse, guilt, and anxiety. The examiner noted that the Veteran had been married to his wife for 35 years but there was marital strain. The Veteran was irritable and easily angered. He stated that he had 4 close friends and that he only engaged in activities (i.e., going out to lunch with a friend) outside of the house once a week. The Veteran's level of functioning was characterized as occupational and social impairment with reduced reliability and productivity. The Veteran underwent a VA examination in July 2017, during which he endorsed symptoms of depressed mood; anxiety; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was alert and oriented; his insight adequate; affect normal; and his immediate, recent, and remote memory was within normal limits. The Veteran reported that he was able to perform activities of daily living and he denied suicidal or homicidal ideations. The examiner also noted irritable behavior and angry outbursts. The examiner characterized the Veteran's level of functioning as occupational and social impairment due to mild or transient symptoms. During a November 2019 VA examination, the Veteran endorsed symptoms of anxiety; suspiciousness; and disturbances of motivation and mood. The examiner indicated that the Veteran presented as well-groomed and neatly dressed. He was oriented to person, place, time, and circumstance; his mood was anxious with constricted affect; and his judgment and insight appeared intact. The examiner also noted that there was no evidence of psychosis, delusions, or perceptual disturbance and the Veteran denied suicidal or homicidal ideations. The Veteran described irritability and social isolation. He reported having nightmares related to his combat experiences. He also endorsed some intrusive thoughts, hypervigilance, and avoidance. He also stated that he has had difficulty experiencing emotion, "that bothers some of my children, that I'm emotionally distant." Irritable behavior and angry outbursts were noted. The Veteran stated, "I don't have the emotions that I used to have, my mother thinks I'm weird now. I don't show emotion or feel death like other people do." He stated that he would get "triggered" or frustrated/irritated in 0 to 60 seconds. He stated, "I get so frustrated that the anger is always there, just underneath the surface. I have been very fortunate to not hurt anyone." The examiner characterized the Veteran's level of functioning as occupational and social impairment due to mild or transient symptoms. A review of the Veteran's treatment records do not show symptoms more severe than those noted during the examinations outlined above. In resolving reasonable doubt in his favor, the Board finds that the frequency, severity, and duration of the Veteran's PTSD symptoms more nearly approximate the next-higher 70 percent rating criteria. In so finding, the Board notes that the private examiner found that the Veteran had near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. Such symptoms are expressly contemplated by the 70 percent rating criteria. Additionally, all three examination reports noted that the Veteran was irritable and easily angered. Such symptoms are similar to, and approximate impaired impulse control, which is also contemplated under the 70 percent rating criteria. See also September 2019 VA Mental Health Note (Veteran describes being tense and irritable). For these reasons, the Board finds that an initial 70 percent rating for PTSD is warranted. However, an initial rating in excess of 70 percent for a PTSD is not warranted because the Veteran's symptoms and overall impairment caused by the PTSD have not more nearly approximated the criteria for the next higher rating of 100 percent, total occupational and social impairment. As to occupational impairment, the Veteran has been retired since approximately 2011. During a VA mental health visit in 2019, he described himself as "retired" with a recent history of "flipping houses" for some income. The Veteran has not indicated, nor has the evidence shown, that he was unable to work or obtain employment due to his PTSD symptoms. As to social impairment, although the Veteran indicated that he prefers social isolation and that there is some marital strain with his wife of over 38 years, the evidence demonstrates that the Veteran socializes with his friends (albeit on a limited basis). He has described having supportive Veteran friends and associating with people from his church. He has reported that he enjoys traveling and riding four-wheelers. In addition, the above evidence reflects that there was no gross impairment in thought processes, delusions or hallucinations, grossly inappropriate behavior, that the Veteran was a persistent danger to hurt himself, or that he was unable to perform activities of daily living. He was oriented on all examinations and did not have memory loss. He was not found to be persistent danger to hurt others. In sum, the evidence does not reflect that the symptoms or overall level of impairment more nearly approximated total and social impairment. As a final matter, the Board notes that on the notice of disagreement, the Veteran's attorney stated, "based on common errors committed by the VA, the Veteran argues and preserves the following:" and included boilerplate on topics including a total disability based on unemployability and inadequate examination. However, no argument specific to the Veteran's case was provided, nor were any such arguments included in later filings by the Veteran or his attorney. As such, because the record does not reflect the examinations were inadequate or that the Veteran is unemployable due to service-connected disability, no further action is necessary. REASONS FOR REMAND 1. Entitlement to service connection for Meniere's disease and positional vertigo, to include as secondary to service-connected disabilities, is remanded. This claim was previously remanded by the Board to obtain an opinion that specifically addressed direct service connection. These opinions were obtained in August 2021 and February 2022. The Veteran and his attorney have since submitted evidence that raises the theory of secondary service-connection and suggests that his Meniere's disease may be caused or aggravated by his service-connected hypertension. In this respect, the Veteran submitted an article from the Journal of Otology, entitled, "The cardiovascular aspects of Meniere's disease population A Pilot Study." This study found that the Meniere's disease population seems to have a high overall cardiovascular risk, especially due to hypertension. The study further noted that cerebrovascular dysfunction, mainly due to cardiovascular risk factors, could influence the course of Meniere's disease and may be responsible for a specific phenotype with a worse prognosis. There is also citation to a 2006 study which found that the elevation of plasma vasopressin, strictly related to salt sensitive hypertension, might be one of the causative factors underlying Meniere's disease symptoms. The journal article further noted that 2013 and 2015 studies reported a possible association between Meniere's disease and cardiovascular comorbidities. It was noted that every patient with Meniere's disease attacks has one or more major risk factors for cerebral ischemia, including vascular disorders and/or chronic hypoxia. Notably, hypertension is a vascular disease. Accordingly, on remand, the VA examiner should also provide an opinion, with rationale, as to the Veteran's claim for Meniere's disease (and positional vertigo) on the basis of secondary service connection. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's Meniere's disease and/or positional vertigo is approximately at least as likely as not related to, proximately due to, or aggravated beyond its natural progression by service-connected hypertension, hearing loss, and/or tinnitus? The examiner is asked to consider and address the article submitted by the Veteran in March 2022 from the Journal of Otology, entitled, "The cardiovascular aspects of Meniere's disease population A Pilot Study." This article cites to numerous medical studies, one of which concluded that "every patient with Meniere's disease attacks has one or more major risk factors for cerebral ischemia, including vascular disorders and/or chronic hypoxia." TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft, 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.