Citation Nr: 1802089 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-05 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected anxiety disorder, NOS (with posttraumatic stress disorder (PTSD) traits). 2. Entitlement to service connection for lumbar spine degenerative joint disease. 3. Entitlement to an effective date earlier than December 1, 2010 for additional compensation for dependents. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from July 1978 to November 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over the appeal was subsequently transferred to the RO in Chicago, Illinois. In March 2016, the Veteran testified at a Board Travel Board hearing. The hearing transcript is of record. The Veterans Law Judge who conducted the March 2016 hearing is no longer employed by the Board, and while the Veteran was offered a hearing before another Veterans Law Judge in October 2017, he declined the opportunity. In May 2016, additional medical evidence showing treatment for some of the issues on appeal, was received by the Board. Neither the Veteran, nor his representative, waived AOJ review of this additional evidence. Id. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the AOJ. See VBA Fast Letter 14-02. Here, the Veteran's substantive appeals for the claims noted above were filed in February 2014 and August 2015. Therefore, a remand for AOJ consideration of such new evidence is not warranted. Furthermore, the RO will have the opportunity to review the newly submitted evidence on remand. The issues of entitlement to service connection for lumbar spine degenerative joint disease and entitlement to service connection for obstructive sleep apnea 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 May 2008, VA received a statement from the Veteran, indicating that he had re-married in March 2008, that he had a step-son who was a full-time college student, and that he had updated his marriage information through the DEERS system. 2. In May 2008, the RO sent the Veteran a VA Form 21-686c, Declaration of Status of Dependents and a VA Form 21-674, Request for Approval of School Attendance, and requested that he provide information related to his divorce from his first wife and current marital information and complete the Form 21-674 for his step-son. 3. In November 2010, the Veteran submitted an updated VA Form 21-686c, Declaration of Status of Dependents, with his current marital information, showing that he was re-married in March 2008 and that he had a step-son, born in 1989, who was in school. He also submitted a VA Form 21-674, Request for Approval of School Attendance for his step-son, a birth certificate for his step-son and a marriage license showing his marriage to his current wife in March 2008. CONCLUSION OF LAW The criteria for an effective date earlier than December 1, 1020, for the award of additional compensation for dependents have not been met. 38 U.S.C. §§ 1115, 5110, 5111 (2012); 38 C.F.R. §§ 3.4 (b)(2), 3.31, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). There are some claims, however, to which the VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). With respect to the Veteran's effective date claim on appeal, no VCAA notice is necessary because the outcome of this issue depends exclusively on documents which are already contained in the Veteran's VA claims folder. The United States Court of Appeals for Veterans Claims has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the law and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Regardless, VA's duty owed to the Veteran has been met. The Veteran has been provided with the regulations governing his claim for an earlier effective date for payment of additional benefits for a dependent spouse. He was afforded the opportunity to submit additional evidence as well as testify at a Board hearing, which was held in March 2016. Legal Criteria The effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. 38 U.S.C. § 5110 (a). An additional amount of compensation may be payable for a spouse or child where a Veteran is entitled to compensation based on disability rated 30 percent or more disabling. 38 U.S.C. § 1115; 38 C.F.R. § 3.4 (b)(2). The effective date for an award of additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401 (b). The "date of claim" for additional compensation for dependents is the date of the Veteran's marriage or birth or adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. For the purpose of establishing a higher rate of compensation based on the existence of a dependent, VA requires evidence which satisfies the requirements of § 3.204. 38 C.F.R. § 3.213 (a). Under 38 C.F.R. § 3.204 (a)(1): VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the social security number of any dependent on whose behalf he is seeking benefits. In addition, the United States Court of Appeals for Veterans Claims ("Court") has found that, while acceptance of a claimant's written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. McColley v. West, 13 Vet. App. 553, 557 (2000). Actual payment of an additional award of compensation for a dependent spouse is the first day of the month following the effective date. 38 C.F.R. § 3.31. Analysis In January 1999, the RO granted service connection for multiple disabilities and assigned a combined rating of 30 percent, effective in December 1998. At that time, the Veteran was married, with 2 dependent children who both lived with him and his wife. See August 1998 VA Form 21-526, Veteran's Application for Compensation or Pension. As such, he was eligible for and paid an award of additional dependency compensation at the time of the January 1999 rating decision (see February 1999 VA Form 21-8947, Compensation and Pension Award) due to his combined disability rating of 30 percent. 38 C.F.R. § 3.4 (b)(2). In a May 2008 notice of disagreement filed in regards to an unrelated overpayment claim, the Veteran stated that he had remarried in March 2008 and that he had a step-son who was a full-time college student. He also stated that he had updated his marriage information through the DEERS system. Subsequently, in May 2008, the RO sent the Veteran a VA Form 21-686c, Declaration of Status of Dependents, and requested that he provide information related to his divorce from his first wife and current marital information. They also included a VA Form 21-674, Request for Approval of School Attendance for him to complete for his step-son. See May 2008 letter from the Waco RO. Over two years later, in November 2010, the Veteran submitted an updated VA Form 21-686c, Declaration of Status of Dependents, with his current marital information, showing that he was re-married in March 2008 and that he had a step-son, born in 1989, who was in school. He also submitted a VA Form 21-674, Request for Approval of School Attendance for his step-son, a birth certificate for his step-son and a marriage license showing his marriage to his current wife in March 2008. In July 2011, the RO notified the Veteran that his new spouse and his step-son had been added to his compensation award, effective December 1, 2010, the first month after he notified the RO that they were his dependents, on November 16, 2010. See July 2011 Compensation and Pension Award Print. As the Veteran did not respond with the requested missing information regarding his re-marriage and school status of his step-son within one year of the May 2008 notice letter, an effective date earlier than December 1, 2010, for additional compensation for dependents is not warranted. 38 C.F.R. § 3.401 (b). See also 38 C.F.R. § 3.204. The Veteran asserts that the effective date should go back to March 2008 because he updated his information in the DEERS system and believed that it would also be automatically updated with the VA since they use the same pay systems. He did not think he had to physically update the VA separately. However, the Board notes that as discussed above, the Veteran was notified by the VA a few days after his May 2008 letter, wherein he indicated that he had remarried and had a step-son in college, that he was required to submit an updated VA Form 21-686c, Declaration of Status of Dependents, with his current marital information, as well as a VA Form 21-674, Request for Approval of School Attendance for his step-son. The fact that the Veteran did subsequently submit this information to the VA, albeit over two years later, shows that he understood that the information was required. It is ultimately is the Veteran's responsibility to report the status of claimed dependents promptly and accurately. Here, the Veteran reported in a May 2008 statement that he was remarried in March 2008, and when requested by VA in May 2008 to provide complete information regarding his claimed dependent child, the record reflects that he did not provide such information until November 2010. The Veteran has not submitted a valid explanation for why it took him more than two years after receiving the May 2008 letter from the RO to submit the requested information. See 38 C.F.R. §§ 3.31, 3.401(b)(1). Section 38 C.F.R. § 3.158 provides that where evidence requested in connection with an original claim, a claim for increase or to reopen is not furnished within one year after the date of request, the claim will be considered abandoned. After expiration of one year further action will not be taken until a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier that the filling of the new claim. In regard to the necessity of providing the missing dependent information, the Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. 38 U.S.C. § 501. In order to receive an additional amount of compensation for a dependent, sufficient proof of such dependency is necessary. 38 C.F.R. § 3.205; McColley v. West, 13 Vet. App. 553, 556-557 (2000). The Veteran in this case was clearly and adequately informed of the necessity of submitting the missing information in order to receive additional compensation for a dependent. Here, the Veteran provided information of his new dependents, was informed of the need to submit a complete application, and did not respond within one year. Accordingly, there is no legal basis for the award of an effective date earlier than December 1, 2010, for the dependency allowance. Thus, the appeal for an earlier effective date for the award of additional compensation for dependents must be denied. ORDER An earlier effective date for additional compensation for dependents is denied. REMAND VA must make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (c), (d) (2017). The duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599 (c)(4) (2017). Lumbar Spine Degenerative Joint Disease The Veteran contends that he has a current lumbar spine disability, related to lifting heavy gear, tools and equipment while working as a combat arms mechanic during active duty. Service treatment records show that the Veteran complained of recurrent low back pain in his June 1998 Report of Medical History, completed prior to his retirement. However, no chronic low back disability was diagnosed at that time. On VA examination in August 1998, the Veteran reported onset of back pain in service in 1989, due to constantly lifting boxes and heavy equipment. He denied ever going to sick call for low back pain, but complained of 4/5/10 back pain once every month with lifting of heavy parts and machinery. He self-treated with lying down and a heating pad at night. On physical examination, the back was nontender to palpation, with flexion to 90 degrees with pain and extension to 30 degrees. Bone scan for the back was essentially normal. He was diagnosed with a recurring low back strain. During private treatment in 2008, the Veteran reported some chronic backache, but did not require medication, although he sometimes treated his pain with Advil. Musculoskeletal examination, including spine examination, was normal in 2009. . In 2010, he reported back pain in the lumbosacral area for 15 years. He was diagnosed with chronic lumbago. In March 2012, he reported back pain after moving chairs while working. He was diagnosed with a thoracic strain and lumbar strain without radiculopathy. See treatment records from Scott & White. VA outpatient treatment records show complaints of mid and lower back pain in 2010 and chronic joint and back pain in 2013. In 2014, he complained of lower back pain that started in 1987. See outpatient treatment records from the VA Central Texas Health Care System. The Veteran was afforded another VA examination in May 2014. He was diagnosed with degenerative arthritis with intervertebral disc syndrome and scoliosis, thoracolumbar spine, which the examiner opined was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale provided was that service treatment records reveal only subjective complaints of recurrent back pain on the June 1998 retirement medical examination report, with a corresponding June 1998 physical examination report showing a normal spine evaluation. The examiner concluded that it is more likely than not that the Veteran's current back condition is due to chronic degenerative changes associated with aging, obesity and/or developmental scoliosis, more likely than not preceding his military service. Essentially, the examiner opined that, as there was no evidence of a low back injury in service or at the time of the Veteran's discharge from service, the Veteran's currently diagnosed low back disability is not related to his reported low back injury during service. Initially, the Board notes that the Veteran's DD-214 shows that he served as a vehicle mechanic for over 20 years. Thus, the Board finds that the circumstances and conditions of his service are consistent with his reports of a low back injury in service, and a low back injury in service is conceded. 38 U.S.C. § 5104 (a). The Board notes further that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2017). The absence of service treatment records showing in-service evidence of a low back disability is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current low back disability, and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The May 2014 examiner did not provide an opinion as to whether the lumbar spine disability identified after service is related to a disease or injury in service or to the Veteran's reported symptomatology. The Veteran has consistently reported that he injured his back during active service. The evidence of record does shows that the Veteran sustained a post-service low back injury in March 2012. Nevertheless, the Veteran is competent to report that he injured his low back during active service and that he has continued to experience low back pain since his separation from active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran's statements and testimony regarding a low back injury in service credible. The May 2014 examiner did not consider the Veteran's competent and credible reports that he had been suffering from low back pain since service. Most significantly, it is symptoms, not treatment, that is relevant for the determination of whether there is a relationship between the in service injury and subsequent symptomatology and the current disability. The May 2014 examiner appears to have relied more on lack of treatment than the credible evidence of symptomatology, and did not adequately address the Veteran's lay statements of continuity. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Accordingly, the Board finds that the March 2014 VA opinion is inadequate for evaluation purposes. As noted above, the May 2014 VA examiner also concluded that the Veteran's current back condition is due to developmental scoliosis, more likely than not preceding his military service. Under pertinent law and regulations, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111. When no preexisting condition is noted upon entry, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C.A. § 1111. As there is no evidence of scoliosis at the time of the Veteran's service entrance examination in January 1978, the Veteran is presumed to have been sound upon entrance. 38 U.S.C.A. § 1111. No medical opinion currently of record addresses whether the Veteran's diagnosed scoliosis is a congenital or developmental defect or disease subject to service connection, and if it is a disease subject to service connection, whether it clearly and unmistakably preexisted service, and if so, whether there is clear and unmistakable evidence that it was not aggravated (permanently worsened beyond its natural progression) during service. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current lumbar spine disability is necessary. 38 C.F.R. § 4.2 (2017). Obstructive Sleep Apnea The Veteran initially claimed that his obstructive sleep apnea (OSA) was secondary to his claimed PTSD. See July 2010 Supplemental Claim. However, he also contends that his OSA is directly related to his military service. Specifically, he alleges that the military taught him to be a light sleeper and to be aware and conscious while sleeping. He also reported that he was abused and mistreated by drill sergeants. He argues that this behavior led to the development of his snoring and apnea. The Veteran has also reported that he was involved in numerous vehicle accidents where he was struck in the head and face; that he sustained other injuries to the face, including the nose and lips, while operating a M578 recovery vehicle and while working on armored vehicles (falling tools and parts striking his head and face); and that he was struck in the face and nose areas on numerous occasions while training in hand to hand combat. He believes that these injuries also led to the development of his sleep apnea. See November 2012 notice of disagreement. Service treatment records are negative for any evidence of sleep apnea or any other sleep disorders during active duty or at the time of the Veteran's discharge. Private treatment records show complaints of difficulty sleeping in 2008, and during a gastroenterology consultation in January 2010, it was noted that his lethargy was possibly related to sleep apnea. 2010 VA treatment records show complaints of problems sleeping since the military. He underwent a sleep study in November 2010 and was diagnosed with OSA. Subsequent VA outpatient treatment records show continuous treatment for OSA, including with use of a CPAP machine. The Veteran was afforded VA PTSD and sleep apnea examinations in August 2012. The examiner diagnosed an anxiety disorder, NOS (with PTSD traits) and confirmed the diagnosis of OSA. The examiner opined that PTSD does not cause OSA and therefore, OSA is less likely as not related to PTSD, and is more likely as not related to the Veteran's weight problem. The examiner explained further that being overweight is one of the leading causes for OSA, per medical studies, and there is no medical literature which states PTSD causes OSA. The Board notes that the Veteran was diagnosed with an anxiety disorder, not PTSD, but the examiner did not discuss whether OSA is related to an anxiety disorder. As such, the opinion is incomplete and therefore, inadequate for evaluation purposes. Furthermore, the August 2012 examiner did not discuss whether the Veteran's OSA is directly related to his active military service, and there is no other medical opinion of record addressing this claim. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of any currently diagnosed sleep disorder, including OSA, is necessary. 38 U.S.C. § 5103A (d) (2012). The appellant is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. With any required assistance of the appellant, obtain any outstanding VA and/or private medical records and associated them with the claims file. 2. Following completion of the above, schedule the Veteran for a new VA spine examination to determine the etiology of any current lumbar spine disability. The examiner should review the claims folder and note such review in the examination report or an addendum. Thereafter, the examiner should address the following inquiries: (A) Identify all current diagnoses referable to lumbar spine. (B) For each diagnosis, the examiner should state whether such condition constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (i) If such is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. (ii) If such is a disease, was it aggravated beyond the natural progression during his military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. (C) If a diagnosis is not considered a congenital or developmental defect or a disease, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current lumbar spine disability, including lumbar spine degenerative joint disease, is the result of an injury or disease in active service. The examiner is advised that a low back injury in service is conceded. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then, afford the Veteran a VA examination to determine the etiology of any currently diagnosed sleep disorder, including OSA. The examiner should review the claims folder and note such review in the examination report or an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed sleep disorder, including OSA, is etiologically related, in whole or in part, to the Veteran's active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed sleep disorder, including OSA, was caused or aggravated (permanently increased in severity beyond the natural progression) by his service-connected anxiety disorder, NOS (with PTSD traits). A complete rationale for all opinions rendered must be provided. The examiner is advised that the appellant is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, the RO or AMC should readjudicate the Veteran's remaining claims for service connection based on the new evidence of record. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs