Citation Nr: 1801572 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-15 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date earlier than October 13, 2010, for the grant of service connection for degenerative disc and joint disease of the cervical spine (hereinafter, neck disability). 2. Entitlement to an effective date earlier than October 13, 2010, for the grant of service connection for adhesive capsulitis of the left shoulder (hereinafter, left shoulder disability). 3. Entitlement to an effective date earlier than October 13, 2010, for the grant of service connection for hypertension. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include Major Depressive Disorder (claimed as depression). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Scott W. Dale, Counsel INTRODUCTION The Veteran had active service from May 1974 to May 1994. This case comes to the Board of Veterans' Appeals (Board) on appeal from February 2011 and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran expressed timely disagreement with these determinations, and, after being provided a Statements of the Case (SOCs) continuing the denials of each issue in March 2014 and February 2016, perfected appeals to the Board with regard to these issues. These appeals have been merged into the current case before the Board. Characterization of an issue on appeal The Board notes that the Veteran filed separate claims to establish service connection for PTSD and depression, and these claims were developed and adjudicated separately. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (the Court) held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. Although the Board acknowledges the Court's holding in Clemons, there is no valid PTSD diagnosis of record during the appeal period, and VA's laws and regulations concerning claims to establish service connection for PTSD are wholly separate and distinct from those pertaining to service connection claims for other psychiatric disabilities. Further, the Board notes that the Veteran was very clear in expressing disagreement with the RO's denial of his claim to establish service connection for depression, but not PTSD. As such, the Board has parsed out the issue of entitlement to service connection for PTSD and expanded the remaining issue as to include the other acquired psychiatric disability which has been diagnosed, per Clemons. The issue is as stated on the title page. Issue not on appeal During the pendency of the current appeal, the Veteran has filed several additional claims for VA compensation; however, he only filed an appeal concerning the unfavorable decision pertaining to one issue - entitlement to Special Monthly Compensation based on the need of regular aid and attendance. While the Veteran was provided a Statement of the Case (SOC) regarding the continued denial of this issue in April 2017, he did not file a timely substantive appeal or similar document to perfect an appeal to the Board. The RO has not subsequently treated this issue as remaining on appeal to the Board. Percy v. Shinseki, 23 Vet. App. 37 (2009). As such, that issue is not in appellate status. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Archbold v. Brown, 9 Vet. App. 124 (1996); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim). The issues of entitlement to service connection for sleep apnea and an acquired psychiatric disability other than PTSD, to include Major Depressive Disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In April 2010 and July 2010, the Veteran filed claims to establish service connection for several different disabilities; however, these claims did not include the issues of service connection for a neck disability, left shoulder disability, and/or hypertension. 2. An October 13, 2010, VA examination report reflects that the Veteran experienced symptoms congruent with hypertension, a neck disability, and a left shoulder disability. 3. On October 18, 2010, the RO received a supplemental claim from the Veteran dated October 14, 2010, to establish service connection for several disabilities, to include hypertension and a left shoulder disability. 4. On October 22, 2010, the RO received from the Veteran a statement in support of a claim to establish service connection for PTSD which noted an in-service neck injury, and the RO interpreted this as a claim to establish service connection for a neck disability. 5. A February 4, 2011, rating decision granted service connection for a left shoulder disability, a neck disability, and hypertension, and assigned an effective date of October 13, 2010, were assigned for these disabilities. 5. No formal or informal claim to establish service connection for a left shoulder disability, a neck disability, and/or hypertension, was received or adjudicated by the RO prior to October 13, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 13, 2010, for the award of service connection for a left shoulder disability, have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400 (2017). 2. The criteria for an effective date prior to October 13, 2010, for the award of service connection for a neck disability, have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400 (2017). 3. The criteria for an effective date prior to October 13, 2010, for the award of service connection for hypertension, have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). See the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) With respect to the appeal for earlier effective dates, resolution of this issue turns on the law as applied to the undisputed facts regarding the date of receipt of claim and date entitlement arose. As the effective date issues decided herein turn on a matter of law, further assistance, such as the further procurement of records or VA examinations, would not assist the Veteran with the appealed issues. Consequently, no further notice or development under the VCAA is warranted with respect to these particular issues. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Earlier Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. Analysis The Veteran seeks an effective date earlier than October 13, 2010, for the awards of service connection for a left shoulder disability, a neck disability, and hypertension. In his January 2012 Notice of Disagreement, he asserts that he feels that the effective date of the awards for these disabilities should be April 13, 2010, because these disabilities were "already attacking his body" when he filed other claims to establish service connection on April 13, 2010. Following a review of the record, the Board finds that an effective date earlier than October 13, 2010, is not warranted with regard to a left shoulder disability, a neck disability, and/or hypertension. In April 2010 and July 2010, the Veteran filed claims to establish service connection for several different disabilities; however, these claims did not include the issues of service connection for a neck disability, left shoulder disability, and/or hypertension. An October 13, 2010, VA examination report reflects that the Veteran experienced symptoms congruent with hypertension, a neck disability, and a left shoulder disability. On October 18, 2010, the RO received a supplemental claim from the Veteran dated October 14, 2010, to establish service connection for several disabilities, to include hypertension and a left shoulder disability. On October 22, 2010, the RO received from the Veteran a statement in support of a claim to establish service connection for PTSD which noted an in-service neck injury, and the RO interpreted this as a claim to establish service connection for a neck disability. As set forth above, the record reflects that the assigned effective date for the awards of service connection for a neck disability, a left shoulder disability, and hypertension (October 13, 2010) actually pre-dates the RO's receipt of the evidence which the RO liberally construed as informal claims for these disabilities. Even if earlier VA examination or hospitalization reports noted such symptoms or disabilities, which they do not, these reports could not be construed as informal claims to establish service connection for these disabilities because prior, formal claims for these disabilities had not been disallowed for the reason that the service-connected disability is not compensable in degree. VA did not receive any claim, formal or informal, to establish service connection for a neck disability, left shoulder disability, or hypertension, prior to October 13, 2010. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The Veteran has not pointed to any communication or document that could serve as an earlier, unadjudicated claim for benefits. In fact, as noted previously, the record indicates that the evidence liberally interpreted by the RO to be formal claims to establish service connection for these disabilities was received by VA after October 13, 2010 - the currently assigned effective date. Having determined that the Veteran's formal claims were filed no earlier than October 13, 2010, the Board must now determine when entitlement to service connection arose. As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even if the Veteran has been experiencing a left shoulder disability, neck disability, or hypertension following his separation from service in May 1994, October 13, 2010, is clearly the later of two dates specified by law. Hence, on this record, an earlier effective date is not assignable by law. In light of the above, the Board finds that the appropriate effective date for the grant of service connection for a left shoulder disability, neck disability, and hypertension, is October 13, 2010 - the effective date assigned by the RO in the February 2011 rating decision. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400 (c)(3)(ii). As there is no legal basis for assignment of an earlier effective date, the claim for an earlier effective date for the award of service connection for diabetes mellitus, type 2, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date earlier than October 13, 2010, for the grant of service connection for a neck disability is denied. Entitlement to an effective date earlier than October 13, 2010, for the grant of service connection for a left shoulder disability is denied. Entitlement to an effective date earlier than October 13, 2010, for the grant of service connection for hypertension is denied. REMAND After having carefully considered the matter, and for reasons explained immediately below, the Board finds that the remaining issues on appeal must be remanded for additional development. Acquired psychiatric disability other than PTSD The Veteran's service treatment records show that he experienced "nervousness" as early as January 1980. He was provided a VA psychiatric examination in April 2011 in connection with a claim to establish service connection for PTSD, and while that disability was not diagnosed, the examiner rendered a diagnosis of Major Depressive Disorder, noted that this disability required inpatient hospitalization in March 2010, and summarily stated that such was "not related to his military service." Unfortunately, the examiner did not provide a rationale for this conclusory opinion or address whether the diagnosed disability was related to the in-service reports of nervousness. The Board notes that the examiner did not have the benefit of the Veteran's complete VA file for review at the time of the examination. In light of above, the Board concludes that the April 2011 VA examination is inadequate for the purpose of adjudicating the Veteran's appeal regarding establishing service connection for an acquired psychiatric disability other than PTSD. As such, the Veteran must be provided an adequate VA psychiatric examination. Sleep apnea The record reflects that the Veteran has a post-service diagnosis of chronic obstructive sleep apnea, and he experienced "sleep trouble" several times in service dating back to January 1980. Despite this evidence, the Veteran was not provided a VA examination to determine the approximate date of onset and/or etiology of this disability. VA's duty to assist the Veteran and the Court provide clear guidance that, in these circumstances, the Veteran's must be provided an adequate VA examination in connection with this issue. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As these issues are being remanded for other matters, updated VA treatment records from the VA Medical Center (VAMC) in Charleston, South Carolina, and all associated facilities dated after March 21, 2017, should be obtained and included in the electronic record. Accordingly, the case is REMANDED for the following actions: 1. The AOJ must obtain and associated with the file all records from the VAMC in Charleston, South Carolina, and associated facilities dated after March 21, 2017. 2. Thereafter, the AOJ must request that the Veteran be provided an appropriate VA psychiatric examination to determine the etiology of any acquired psychiatric disability, to include Major Depressive Disorder, present during the appeal period. After a review of the complete record, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran has an acquired psychiatric disability that is due to or the result of any incident of his active service. The examiner must specifically address the April 2011 diagnosis of Major Depressive Disorder and any relationship of this diagnosis to the in-service notations of "nervousness" in January 1980. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must request that the Veteran be provided an appropriate VA examination to determine the etiology of any sleep disorder, to include chronic obstructive sleep apnea, present during the appeal period. After a review of the complete record, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran has chronic obstructive sleep apnea that is due to or the result of any incident of his active service. The examiner must specifically address the post-service diagnoses of chronic obstructive sleep apnea and any relationship of this diagnosis to the in-service notations of "sleep trouble" in January 1980. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending issues in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs