Citation Nr: 1609439 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 12-11 451A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea (OSA). 2. Entitlement to an effective date prior to February 12, 2010, for the grant of service connection for cirrhosis of the liver. 3. Entitlement to ratings for coronary artery disease (CAD) in excess of 30 percent prior to June 14, 2010, and in excess of 60 percent from that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran. ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1967 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2010, August 2010, and June 2011 rating decisions by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The April 2010 rating decision granted service connection for cirrhosis of the liver, effective February 12, 2010. The August 2010 rating decision, in pertinent part, granted an increased (60 percent) rating for CAD, effective June 14, 2010, and denied service connection for sleep apnea. The June 2011 rating decision reconsidered and continued the August 2010 denial of service connection for OSA. In May 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. In May 2015, the Veteran submitted additional evidence, including a private medical opinion, with a waiver of Agency of Original Jurisdiction (AOJ) review. In September 2015, the Board requested a Veterans Health Administration (VHA) medical advisory opinion in this matter. The matter of service connection for OSA is being REMANDED to the AOJ. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. An unappealed October 2003 rating decision denied the Veteran service connection for cirrhosis of the liver, and unappealed October 2006 and December 2008 rating decisions found new and material evidence had not been received to reopen the claim; clear and unmistakable error (CUE) in those decisions has not been alleged. 2. After the December 2008 rating decision, the first communication from the Veteran evidencing an intent to file a claim of service connection for cirrhosis of the liver was received on February 12, 2010. 3. By an August 2014 statement, the Veteran withdrew his appeal seeking an increased rating for CAD; there is no allegation of error in fact or law in this matter remaining for appellate consideration. CONCLUSIONS OF LAW 1. An effective date prior to February 12, 2010, for the grant of service connection for cirrhosis of the liver, is not warranted. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015). 2. The criteria for withdrawal of a substantive appeal by the Veteran are met with respect to the claim seeking an increased rating for CAD; the Board has no further jurisdiction to consider an appeal in this matter. 38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the withdrawal of the appeal seeking an increased rating for CAD, there is no need to discuss the impact of the VCAA on the matter, as any mandated notice or duty to assist omission is harmless. As the April 2010 rating decision granted service connection for cirrhosis of the liver and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and additional notice is not required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An April 2012 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an earlier effective date for the award and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). All evidence relevant to the Veteran's claim has been secured. Notably, determinations regarding effective dates of awards are based essentially on what is already in the record, and when it was received, and generally further development of the record is not necessary. The Board finds that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with VA's duty to assist. He has not identified any pertinent evidence that is outstanding. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the regulation: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, the May 2015 hearing before the undersigned focused, in pertinent part, on the issue of entitlement to an effective date prior to February 12, 2010, for the grant of service connection for cirrhosis of the liver. The undersigned explained the law governing effective dates of awards of service connection (including as pertinent here when there is a prior final decision on a claim of service connection for the specific disability at issue), and what type of evidence (and circumstances) might warrant the benefit sought. The testimony elicited and presented focused on what is necessary to establish an earlier effective date for service connection. The Veteran's testimony reflects knowledge of the elements necessary to substantiate his claim. There is no allegation of a deficiency in the conduct of the hearing. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Earlier Effective Date Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). Where new and material evidence other than service department records has been submitted to reopen a prior claim for service connection, the effective date will be either the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Id. at § 3.400(q). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd 349 F.3d 1326 (Fed. Cir. 2003). If at any time after VA issues a decision on a claim, VA receives or associates with the record relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a). Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156(c)(1). Records that are not included are records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3); see Blubaugh v. McDonald, No. 2013-7119, 2014 WL 6890619, at *4 (Fed. Cir. Dec. 9, 2014) (finding section 3.156(c) only applies 'when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision.' New and Material Evidence, 70 Fed.Reg. at 35,388 (emphasis added)." A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's 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). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran filed a claim of service connection for sclerosis of the liver in June 2002. On October 2002 VA examination, cirrhosis of the liver was diagnosed. Private treatment records received in October 2002 also show cirrhosis of the liver had been diagnosed. An October 2003 rating decision, in pertinent part, denied service connection for cirrhosis of the liver based on a finding it neither occurred in nor was caused by service. In a May 2004 statement, the Veteran requested a denial of service connection for a skin disability be reconsidered, but did not initiate an appeal of the denial of service connection for cirrhosis of the liver. VA treatment records show cirrhosis of the liver was assessed in December 2004. In January 2006, VA received private treatment records showing cirrhosis of the liver had been diagnosed. In March 2006, the Veteran claimed service connection for liver disease secondary to his service-connected diabetes mellitus. An unappealed October 2006 rating decision, in pertinent part, found new and material evidence had not been received to reopen the claim of service-connection for cirrhosis of the liver. The Veteran filed a claim to reopen the previously denied claim of service-connection for cirrhosis of the liver in August 2008. In a letter received in October 2008, a private physician noted he had treated the Veteran for cirrhosis of the liver and opined it was the result of his diabetes mellitus and hypercholesterolemia. A December 2008 rating decision, in pertinent part, found new and material evidence had not been received to reopen claim of service-connection for cirrhosis of the liver. In a January 2009 statement, the Veteran requested a "Decision Review Officer revisit his claim for the purpose of reconsideration," noting he was concerned his CAD was not rated appropriately. He did not initiate an appeal of the denial of service connection for cirrhosis of the liver. The Veteran filed a claim to reopen the previously denied claim of service-connection for cirrhosis of the liver on February 12, 2010. He submitted private medical opinions in support of his claim that same day. The April 2010 rating decision on appeal granted service connection for cirrhosis of the liver, effective February 12, 2010. In a May 2010 notice of disagreement, the Veteran contended he was entitled to an effective date of June 4, 2001, because that is the effective date of service connection for his diabetes mellitus and he claimed service connection for cirrhosis of the liver at the same time. In a September 2010 statement, he argued his treatment records showed his cirrhosis of the liver was diagnosed in 1997 and was the result of his diabetes. In a separate September 2010 statement, he argued he appealed the December 2008 denial of service connection for cirrhosis of the liver, suggesting the issuance of June 2009 SOC, which included a reference of the private September 2008 medical opinion, showed he had appealed the December 2008 rating decision. An October 2010 VA Request for Information shows that the Veteran's service personnel records were received some time after October 2010. At the May 2015 Board hearing, the Veteran essentially argued he was entitled to an earlier effective date for the grant of service connection for cirrhosis of the liver because the October 2002 examiner did not test whether the cirrhosis was caused by his diabetes mellitus. He acknowledged service connection for cirrhosis of the liver was denied in 2003, 2006, and 2008, but reported he was not aware of the appeals process. The undersigned informed him a only a request for revision based on clear and unmistakable error (CUE) can result in the assignment of an effective date earlier than the date of a prior final denial and granted a 60-day abeyance period to file a CUE claim if he wished; no such claim has been filed. As new and material evidence was not received within a year following the unappealed October 2003 and October 2006 decisions, those decisions are final based on the evidence then of record and are not subject to revision in the absence of CUE in the decision. 38 U.S.C.A. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). The Veteran has argued his January 2009 statement requesting a reconsideration of the CAD rating assigned by the December 2008 rating decision was a notice of disagreement with the entire decision, including the finding that new and material evidence had not been received to reopen the claim of service-connection for cirrhosis of the liver. However, in the January 2009 statement, the Veteran clearly indicated he only disagreed with a claim [emphasis added] and referred to the CAD rating. The statement did not express disagreement with the denial of service connection for cirrhosis of the liver, and therefore did not constitute a notice of disagreement with that denial. 38 C.F.R. § 20.201. At the May 2015 Board hearing, the Veteran seemed to concede as much when he described the prior denials and reported he was not familiar with the appellate process. As new and material evidence was also not received within a year following the December 2008 decision, it is likewise final based on the evidence then of record, and is not subject to revision in the absence of CUE. The Veteran has not alleged CUE in the prior decisions, and there is no legal authority for the Board to otherwise set aside the finality of those decisions. The Board notes the Veteran was granted service connection for cirrhosis of the liver prior to when his service personnel records were associated with the record. Accordingly, they did not form a basis for the grant of service connection for cirrhosis of the liver. Regardless, they were not relevant to the issue of service connection for cirrhosis of the liver. Because the grant of service connection for cirrhosis of the liver was not based all or in part on the service personnel records, an earlier effective date under 38 C.F.R. § 3.156(c)(3) is not warranted. See Blubaugh v. McDonald, No. 2013-7119, 2014 WL 6890619, at *4 (Fed. Cir. Dec. 9, 2014). Accordingly, the critical question in this matter is whether following the December 2008 rating decision, and prior to February 12, 2010, there was a communication from the Veteran expressing an intent to seek service connection for cirrhosis of the liver. A close review of the record found that the first communication from the Veteran to VA (expressing intent to seek service connection for cirrhosis of the liver) following the December 2008 rating decision was the one received on February 12, 2010. The Board recognizes the Veteran's assertions that he is entitled to an earlier effective date for the grant of service connection for cirrhosis of the liver because it had been diagnosed prior to the October 2003 denial and was later found to be caused by his diabetes mellitus, which is service-connected. That brings the analysis back to the law governing finality of prior rating decisions. Under such circumstances the effective date of an award of service connection is not based on the earliest medical evidence showing treatment for the disability at issue, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde, 12 Vet. App. at 382. Because the Veteran is not shown to have filed a claim of service connection for cirrhosis of the liver between December 2008 and February 12, 2010, VA is precluded from granting an effective date for the award of service connection for cirrhosis of the liver prior to that date. In light of the foregoing, the Board finds that an effective date prior to February 12, 2010 for the award of service connection for cirrhosis of the liver is not warranted under the governing law and regulations, and that the appeal in this matter must be denied. Withdrawal Under 38 U.S.C.A. § 7104, the Board has jurisdiction in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing. 38 C.F.R. § 20.204. By an August 2014 statement, the Veteran withdrew his appeal seeking an increased rating for CAD. Hence, there remains no allegation of error in fact or law for appellate consideration with respect to this matter. Accordingly, the appeal seeking an increased rating for CAD must be dismissed. ORDER An effective date prior to February 12, 2010 for the award of service connection for cirrhosis of the liver is denied. The appeal seeking an increased rating for CAD is dismissed. REMAND The Board finds that further development of the record is needed for a proper adjudication of the claim of service connection for OSA. The Veteran has raised new theories of entitlement that require such development. Private treatment records show OSA was diagnosed in April 2010. In a June 2010 letter, a private treating physician noted there is an "increased association of sleep apnea and coronary heart disease," but then indicated sleep apnea "increases his risk for heart disease and ischemic heart disease." On July 2010 VA examination, OSA was diagnosed. The examiner opined the Veteran's claim was baseless because "diabetes does not cause sleep apnea." In a May 2011 VA opinion, another examiner opined OSA is not due to CAD or diabetes mellitus. He explained that there is no evidence in the cardiac or endocrine literature to support the claimed association of OSA with CAD and diabetes mellitus. At a May 2015 hearing before the undersigned, the Veteran reported his treatment providers had attributed his OSA to his CAD. In a May 2015 letter, the Veteran's private cardiologist noted "there is considerable evidence in the literature that suggests association between obstructive sleep apnea and coronary artery disease." The explanation provided suggests that sleep apnea leads to hypertension, which in turn causes CAD. The private opinions submitted appear to invoke the inverse of what is needed to substantiate a claim of secondary service connection for sleep apnea as they suggest sleep apnea causes CAD, and not vice versa. However, they do indicate there is an association between CAD and sleep apnea, whereas the May 2011 VA opinion indicates there is none. The Board found the opinions outlined above to be inadequate for rating purposes (as either conclusory or offered in speculative terms) and, therefore, sought a VHA medical expert advisory opinion in the matter. In a November 2015 response, the consulting expert (a Medical Director of Sleep Medicine Services at a VA Medical Center) opined "it is likely that the appellant's OSA was neither caused by...nor aggravated by his CAD or his diabetes. Quite likely, based on our current understanding of OSA, the opposite is true." She explained that medical literature supports that OSA is associated an increased risk of cardiovascular disease, not the opposite. She reported studies suggest severe OSA increases the likelihood of developing Type II diabetes. She also noted the etiologies for OSA are usually multifactorial and can be congenital or acquired. An example of an acquired cause she included was "excess fat deposition in the structures of the upper airway related to obesity." She concluded that identifying a single cause for OSA in an individual is often impossible. The Board found such opinion responsive to the questions posed. In a February 2016 appellate brief, the Veteran's representative contended the OSA is secondary to his service-connected CAD, diabetes mellitus, PTSD and/or esophageal varices [emphasis added]. He referred to an article in the Journal of Clinical Sleep Medicine, "Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans," that he reported found "PTSD symptoms severity increased the risk of screening positive for OSA" and that the "emerging body of research suggests veterans with PTSD have higher rates of OSA than the general population." He also argued the VHA opinion was inadequate because it did not address aggravation and did not address whether the apnea was secondary to the service-connected PTSD and esophageal varices. He asserted the Veteran's VA treatment records show he began experiencing weight gain after he received the diagnosis of diabetes mellitus, and argued that weight gain caused by diabetes mellitus and CAD caused the OSA. He argued the VHA examiner did not properly address such an argument even though she noted OSA can be acquired by an excess fat deposition in the structures of the upper airway related to obesity. The Veteran has raised alternative theories of entitlement. As there is conflicting evidence regarding the nature and etiology of the Veteran's diagnosed OSA, an examination to secure a medical advisory opinion that resolves the matter is necessary. The case is REMANDED for the following: 1. The AOJ should secure for association with the record updated records of all VA treatment the Veteran has received for OSA from April 2015 to the present (to specifically include the reports of his treatment at the Wilmington, Delaware VA Medical Center). If any such records are unavailable, the reason for their unavailability must be explained for the record, and the Veteran should be so advised. 2. The AOJ should thereafter arrange for the Veteran to be examined by a somnologist to determine the likely etiology of his diagnosed OSA. The examiner should elicit a history from the Veteran, review his entire VA record (to specifically include this remand, STRs, and postservice treatment records), and provide opinions that respond to: Please identify the likely etiology for the Veteran's OSA. (a) Is it at least as likely as not (a 50% or better probability) that it was either caused or aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected CAD, including any weight gain caused by such disability? If the OSA is found to not have been caused, but to have been aggravated by the service-connected CAD, please identify the degree of impairment that is due to such aggravation. (b) Is it at least as likely as not (a 50% or better probability) that it was either caused or aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected diabetes, including any weight gain caused by such disability? If the OSA is found to not have been caused, but to have been aggravated by the service-connected diabetes (and diabetes-related weight gain), please identify the degree of impairment that is due to such aggravation. (c) Is it at least as likely as not (a 50% or better probability) that it was either caused or aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected PTSD? If the OSA is found to not have been caused, but to have been aggravated by the service-connected PTSD, please identify the degree of impairment that is due to such aggravation. (d) Is it at least as likely as not (a 50% or better probability) that it was either caused or aggravated by (the concept of aggravation must be specifically addressed) the Veteran's service-connected esophageal varices? If the OSA is found to not have been caused, but to have been aggravated by the service-connected esophageal varices, please identify the degree of impairment that is due to such aggravation. The examiner must explain the rationale for all opinions, with citation to supporting clinical data, as deemed appropriate, and comment on the opinions in the matter already in the record. 3. The AOJ should then review the entire record and readjudicate the claim of service connection for OSA, to include as secondary to already service-connected disabilities. If it remains denied, the AOJ should issue an appropriate SSOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs