Citation Nr: 23054792 Decision Date: 10/03/23 Archive Date: 10/03/23 DOCKET NO. 20-05 675 DATE: October 3, 2023 ORDER New and material evidence having been received, reopening the claim of service connection for bilateral hearing loss is granted. New and material evidence having been received, reopening the claim of service connection for Crohn's disease is granted. Service connection for Crohn's disease is granted. Service connection for obstructive sleep apnea (OSA) is granted. Service connection for hyperlipidemia (high cholesterol) is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for a stomach disorder other than Crohn's disease is remanded. Entitlement to service connection for a sleep disorder other than OSA is remanded. Entitlement to service connection for restless leg syndrome is remanded. Entitlement to an evaluation in excess of 50 percent for generalized anxiety disorder (previously diagnosed as anxiety reaction, with psychosomatic gastrointestinal complaints) is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for Crohn's disease was last finally denied in a November 2008 rating decision that was not timely appealed, nor was any new and material evidence received within the appeal period; that decision is final. 2. The Veteran's claim for service connection for bilateral hearing loss was last finally denied in a September 2011 rating decision that was not timely appealed, nor was any new and material evidence received within the appeal period; that decision is final. 3. Since the last final denial of the claims in the November 2008 and September 2011 rating decisions, respectively, new and material evidence that raises a reasonable possibility of substantiating the bilateral hearing loss and Crohn's disease claims has been received. 4. The evidence demonstrates that the Veteran's Crohn's disease is secondary to his service-connected generalized anxiety disorder. 5. The evidence demonstrates that the Veteran's obstructive sleep apnea is secondary to his service-connected generalized anxiety disorder. 6. The Veteran's high cholesterol is a laboratory finding and not a disease or disability under VA law and regulations. CONCLUSIONS OF LAW 1. New and material evidence having been received, the criteria to reopen the claim for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 2. New and material evidence having been received, the criteria to reopen the claim for service connection for Crohn's disease are met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for Crohn's disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for high cholesterol have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1969 to December 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2017 and September 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the issues on appeal, the Veteran initially filed claims for service connection for obstructive sleep apnea and "sleep issues." While the June 2017 and September 2017 rating decisions addressed the claims as sleep apnea syndromes (also claimed as sleep issues and sleep conditions), the December 2019 and January 2020 Statements of the Case, included separate claims for "sleep conditions" and obstructive sleep apnea. Given the procedural history of the claims and the diagnoses of record, the Board has characterized the issues as service connection for obstructive sleep apnea and for a sleep disorder other than sleep apnea. While the Veteran initially appealed the issue of entitlement to service connection for headaches and a traumatic brain injury, those claims were granted in June 2020 and October 2020 rating decisions. Accordingly, those issues have been resolved and are not presently on appeal before the Board. Reopening Service Connection Claims In general, decisions of the Agency of Original Jurisdiction (AOJ) and the Board that are not appealed in the prescribed period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the AOJ, the Board must determine whether new and material evidence has been received subsequent to an unappealed AOJ denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Service connection for Crohn's disease was last finally denied in a November 2008 rating decision on the basis the Veteran's Crohn's disease was not related to service and/or his service connected generalized anxiety disorder. The Veteran did not submit a timely notice of disagreement and new and material evidence was not received during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Service connection for a bilateral hearing loss disability was last finally denied in a September 2011 rating decision on the basis there was "no evidence the claimed condition exists nor was caused by service." The Veteran did not submit a timely notice of disagreement and new and material evidence was not received during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence received since the November 2008 and September 2011 rating decisions includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. Regarding his Crohn's disease, an October 2020 letter from Dr. Blevins indicates the Veteran's diarrhea and cramping were clearly increased by his anxiety and that it was very common for patients who have both Crohn's disease and anxiety to have worsening Crohn's symptoms because of mental health symptoms. Regarding his bilateral hearing loss, VA audiology records from October 28, 2019 and November 26, 2019 indicate the Veteran had moderate sensorineural hearing loss and was issued hearing aids. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Service Connection Claims Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Crohn's Disease The Veteran seeks service connection for Crohn's disease. The record notes a diagnosis of Crohn's disease. See e.g., November 26, 1996 VA record and November 2020 Dr. Blevins statement. In October 2008, a VA clinician opined there was no connection between development of Crohn's disease and anxiety disorder. Therefore, it is less likely than not the Veteran's Crohn's disease was due to his service-connected neurosis. A December 14, 2010 VA record notes the Veteran had gastrointestinal problems as soon as his citalopram was increased. It was also noted the Veteran's Crohn's disease was affected by "stress." A November 23, 2016 VA record notes the Veteran had Crohn's disease which was "stress sensitive," and that it worsened with stressful situations. In an November 2020 statement, Dr. Blevins opined the Veteran's bowel symptoms, including his Crohn's disease, were clearly attributable to his service-connected generalized anxiety disorder. In support of that finding, Dr. Blevins noted the Veteran reported that when he was stressed or his anxiety was worse than normal, he had increased stomach pains and diarrhea with urgency. She further noted that it was very common for patients who have both Crohn's disease and anxiety to have worsening Crohn's symptoms because of mental health symptoms. Thus, she opined that the Veteran's statements were credible, and his Crohn's disease was clearly increased by his anxiety. The Board has not overlooked the negative VA opinion. Nevertheless, as that opinion is conclusory it is afforded no probative weight. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding a medical opinion must contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two). Accordingly, as there is a positive private opinion and that opinion is consistent with the VA treatment records, the Board finds the Veteran's Crohn's disease is secondary to his service-connected generalized anxiety disorder. Accordingly, service connection is warranted. See 38 C.F.R. § 3.310. Obstructive Sleep Apnea The Veteran seeks service connection for obstructive sleep apnea. The record notes a diagnosis of obstructive sleep apnea. See e.g., November 23, 2016 VA record. Additionally, in a November 2020 Disability Benefits Questionnaire (DBQ), Dr. Blevins opined the Veteran's obstructive sleep apnea was at least as likely as not caused by and permanently aggravated by his service-connected generalized anxiety disorder and medications taken for his generalized anxiety disorder. Dr. Blevins noted the Veteran was unable to wear his continuous positive airway pressure (CPAP) mask inter alia because of nightmares that caused him to pull the mask off and the fact the mask made him feel anxious. Dr. Blevins explained the inability to wear a CPAP every night greatly aggravated the effects of the Veteran's OSA. Dr. Blevins also noted the Veteran was prescribed buspirone and trazodone which were well known to be associated with sedation. She further noted that research showed all sedative drugs suppress the central nervous system and are typically accompanied by a reduction in carbon dioxide responsiveness in the medullary respiratory center. Accordingly, the introduction of such medications results in respiratory pauses, irregular breathing, and shallow breaths which increased the risk for harmful obstructive sleep apnea respiratory events. Therefore, it was as at least as likely as not the Veteran's obstructive sleep apnea was secondary to his service-connected generalized anxiety disorder. As there is an uncontradicted opinion linking the Veteran's obstructive sleep apnea to his service-connected generalized anxiety disorder, service connection is warranted. See 38 C.F.R. § 3.310. High Cholesterol The Veteran seeks service connection for hyperlipidemia (high cholesterol). The Board finds against the claim for service connection for high cholesterol. In this regard, while the Veteran is diagnosed with hyperlipidemia/high cholesterol, this condition is not a disability in and of itself for which VA compensation benefits are payable, as the Veteran has not demonstrated that such causes any functional impairment that impairs his earning capacity. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (providing that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities). Although high cholesterol may be evidence of underlying disability or may later cause disability, service connection may not be granted for a laboratory finding alone. A disability for VA compensation purposes refers to an impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Allen v. Brown, 7 Vet. App. 439 (1995); see Saunders v. Wilkie, 886 F.3d 1356 (2018) (finding the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability."). In this case, there is no evidence of record suggesting the Veteran's high cholesterol, on its own, has caused any functional impairment of earning capacity. In the absence of proof of a current disability for which service connection may be granted, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1995) (noting that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). The Board acknowledges that it is remanding other claims to obtain outstanding records. Nevertheless, as the Veteran's high cholesterol is a laboratory finding, and not a disability for VA purposes, there is no reasonable possibility the outstanding records would aid in substantiating the claim. As such, there is no prejudice in the current adjudication of the claim. Jones v. Wilkie, 918 F.3d 922, 926 (noting the duty to assist in obtaining VA records is discharged if no reasonable possibility exists that such assistance would aid in substantiating the claim). In denying service connection for high cholesterol, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claim and the claim must be denied as a matter of law, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND The evidence indicates there may be outstanding relevant VA treatment records. An October 18, 2022 VA treatment record indicates the Veteran was to return for a follow up appointment on December 13, 2022. VA treatment records after November 27, 2022 have not been associated with the claims file. Additionally, VA records from December 2, 2010 and October 28, 2019 note that audiograms had been completed and were viewable under "Tools." However, the audiograms have not been associated with the claims file in a viewable form. Also, VA treatment records from March 12, 2013, April 12, 2013, June 22, 2016, November 9, 2017, February 16, 2018, June 6, 2018, May 1, 2019, and October 26, 2020 note that various records had been scanned into VistA Imaging. It does not appear that the referenced records have been associated with the claims file. A remand to obtain the outstanding records is required. See Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) (stating the duty to assist is not discharged "based on a mere belief that the likelihood of finding a record substantiating a veteran's claim is 'low' or 'extremely low'"). The record indicates that there are outstanding private treatment records. VA treatment records indicate the Veteran received treatment from a non-VA gastrointestinal provider, Dr. Anderson, and an unidentified private primary care provider. See e.g., VA records from June 30, 2016, October 14, 2020, and September 25, 2020. These records have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain them. See 38 U.S.C. § 5103A (2)(B) (stating reasonable efforts requires VA to make at least two requests for private records unless the first request makes it evident further requests would be futile). Regarding the Veteran's bilateral hearing loss and tinnitus claims, VA audiology records from October 28, 2019 and November 26, 2019 indicate the Veteran had moderate sensorineural hearing loss. Additionally, the Veteran is competent to report tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran reported in-service noise exposure during his miltiary occupational speciality as a "shipmate" from inter alia shelling exercises. See September 18, 2013 and September 14, 2018VA records. The Board finds this evidence satisfies the low threshold of McLendon and the Veteran should be afforded examinations to address the nature and etiology of his hearing loss and tinnitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for a stomach disability, other than Crohn's disease, VA records note diagnoses including gastroesophageal reflux disease (GERD), Barrett's esophagus, irritable bowel syndrome, esophagitis, and ileo-cecal valve ulcers. See e.g., April 4, 2017, August 8, 2017, April 28, 2021, January 11, 2022, and January 13, 2022 VA records. Additionally, VA records indicate the Veteran's stomach symptoms may be related to medication for his service connected disabilities. See e.g., December 14, 2010 record (noting that citalopram, clonazepam, and gapapentin caused stomach symptoms). The Board finds that this evidence satisfies the low threshold of McLendon, and the Veteran should be afforded an examination to address the nature and etiology of any stomach disability other than Crohn's disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claims for restless leg syndrome and a sleep disorder other than obstructive sleep apnea, VA records note diagnoses of restless leg syndrome, periodic limb movement disorder, insomnia, and a disorder of initiation of sleep. See e.g., June 25, 2012 and October 23, 2020 VA records. An November 2020 evaluation from Dr. Henderson-Galligan indicates the Veteran's service-connected generalized anxiety disorder includes "insomnia, broken sleep and nightmares." Similarly, an August 2022 VA traumatic brain injury (TBI) examination report notes the Veteran's symptoms included insomnia. The Board finds that this evidence satisfies the low threshold of McLendon, and the Veteran should be afforded an examination to determine whether the Veteran's restless leg syndrome and sleep disorders other than obstructive sleep apnea are part and parcel of his service-connected generalized anxiety disorder and TBI or are distinct disabilities that may be secondary to those disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's generalized anxiety disorder, a June 2, 2022 VA record noted the Veteran's "mental health has worsened" and his medication was increased. As the evidence suggests worsening symptoms since the Veteran was last examined by VA in April 2020, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his generalized anxiety disorder. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (holding VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records and associate those documents with the claims file; specifically, the AOJ should obtain and associate with the claims file the VistA Imaging records referenced in the March 12, 2013, April 12, 2013, June 22, 2016, November 9, 2017, February 16, 2018, June 6, 2018, May 1, 2019, and October 26, 2020 VA record entries. The AOJ should also obtain and associate with the clams file the audiogram results referenced in the December 2, 2010 and October 28, 2019 VA record entries. Any negative search should be noted in the record and communicated to the Veteran. Additionally, in the event records are not obtained, if it is determined that additional research requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, including his gastroenterologist and primary care provider. After securing any necessary releases, the AOJ should request any relevant records identified. Any negative search should be noted in the record and communicated to the Veteran. 3. After the above development is completed to the extent possible, schedule the Veteran for a VA audiological examination. The claims file must be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the audiologist should opine: (a.) Whether any hearing loss disability began during military service, within one year of service, or is otherwise the result of military service, to include the Veteran's reported noise exposure and/or documented head injury therein. (b.) Whether tinnitus began during military service, within one year of service, or is otherwise the result of military service, to include the Veteran's reported noise exposure and/or documented head injury therein. In addressing the above, the examiner should address any statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service. A complete rationale should be provided for all opinions and conclusions expressed. 4. After records development is completed to the extent possible, the Veteran should be afforded a VA examination to determine the nature of any stomach disability other than Crohn's disease, and to obtain an opinion as to whether such is possibly related to service and/or his service-connected disabilities. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to: (a.) Whether any stomach disability other than Crohn's disease, began during military service or is otherwise the result of military service. (b.) Whether any stomach disability other than Crohn's disease, was caused by a service-connected disability or any medication taken for a service-connected disability? (c.) If not caused by the service-connected disability or any medication taken for a service-connected disability, is any stomach disability other than Crohn's disease aggravated (i.e., worsened) by a service-connected disability or any medication taken for a service-connected disability? In rendering the above requested opinions, the examiner must address the documented diagnoses of GERD, Barrett's esophagus, esophagitis, irritable bowel syndrome, and ileo-cecal valve ulcers. In addressing the above, the examiner should address any statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service. A complete rationale should be provided for all opinions and conclusions expressed. 5. After records development is completed to the extent possible, the Veteran should be afforded a VA examination to determine the nature of his restless leg syndrome and any sleep disorder, other than obstructive sleep apnea, and to obtain an opinion as to whether such are possibly related to his service-connected generalized anxiety disorder and/or TBI. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should: (a.) Identify any sleep disorder, other than obstructive sleep apnea, that is a separate and distinct disability from the Veteran's generalized anxiety disorder and/or TBI. In so opining, the examiner must address the documented diagnoses of periodic limb movement disorder, insomnia, and disorder of initiation of sleep. (b.) State whether any sleep disorder, other than obstructive sleep apnea, was caused by the service-connected generalized anxiety disorder and/or TBI? (c.) If not caused by the service-connected generalized anxiety disorder and/or TBI, is any sleep disorder, other than obstructive sleep apnea, aggravated (i.e., worsened) by his service-connected generalized anxiety disorder and/or TBI? (d.) State whether the Veteran's restless leg syndrome was caused by the service-connected generalized anxiety disorder and/or TBI? (e.) If not caused by the service-connected generalized anxiety disorder and/or TBI, is the Veteran's restless leg syndrome aggravated (i.e., worsened) by his service-connected generalized anxiety disorder and/or TBI? In addressing the above, the examiner should address any statements regarding onset of symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from service. A complete rationale should be provided for all opinions and conclusions expressed. 6. After records development is completed to the extent possible, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his generalized anxiety disorder. The claims file should be reviewed by the examiner. The examiner should reconcile his or her opinion with the November 2020 DBQ from Dr. Henderson-Galligan. The examiner should also address the Veteran's June 2, 2022 report of sucidal ideation and August 9, 2022 report of a visual hallucination. A complete rationale should be provided for all opinions and conclusions expressed. 7. After the above record development is completed to the extent possible, schedule the Veteran for a VA examination to determine whether the Veteran's service-connected disabilities cause him to be housebound or need the aid and attendance of another person. The claims file should be reviewed in conjunction with the examination. The examiner should address the impact that the Veteran's service-connected disabilities have on his ability to perform activities of daily living (e.g., the ability to dress/undress, keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; is able to feed himself; can attend to the wants of nature; or requires assistance on a regular basis to protect himself from hazards/dangers incident to his daily environment) such as to require the aid and attendance of another person. The examiner should additionally address whether the Veteran is permanently housebound because of his service-connected disabilities. ? A complete rationale should be provided for all opinions and conclusions expressed. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.