Citation Nr: 1803564 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-10 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than July 14, 2010 for the award of service connection for commotion maculae in the left eye, paracentral scotoma present in the left eye, posterior vitreal detachments of both eyes (also claimed as high myopia with myopathy degenerative changes, left eye condition secondary to an in service automobile accident) (left eye disability). 2. Entitlement to service connection for obesity, including as secondary to service-connected adjustment disorder with mixed anxiety and depressed mood and impulse control disorder not otherwise specified (also claimed as depression and anxiety). 3. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connection adjustment disorder with mixed anxiety and depressed mood and impulse control disorder not otherwise specified (also claimed as depression and anxiety). 4. Entitlement to service connection for carpel tunnel syndrome (CTS). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from August 1983 to April 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of an effective date earlier than July 14, 2010 for the service-connected left eye disability is decided below. The remaining issues on appeal are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. FINDINGS OF FACT 1. In October 2004, the Veteran filed a claim for service connection for a left eye disability. A letter was sent to him in November 2004 requesting additional information and evidence regarding his claim and provided information about what VA would do, and what he could do to help with his claim. 2. In September 2005 the Veteran was notified by rating decision that the AOJ denied service connection for high myopia with myopathy degenerative changes (claimed as left eye condition secondary to an in-service automobile accident). The Veteran filed a notice of disagreement that the AOJ received in September 2006. In January 2007 the AOJ issued a statement of the case (SOC). The Veteran did not perfect a timely appeal in the matter, and the September 2005 rating decision became final. 3. The veteran submitted an inquiry about his left eye disorder claim that was received by the RO on March 13, 2008; two months later, an untimely VA Form 9 (Appeal to Board of Veterans Appeals) was received addressing this same claim. 4. On July 14, 2010, the Veteran filed an informal claim essentially petitioning a reopening of the claim of entitlement to service connection for a left eye disability. CONCLUSION OF LAW The criteria for entitlement to an effective date of March 13, 2008 for the award of service connection for a left eye disability have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board has reviewed the Veteran's record and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Notably, in this instance, the issue being decided is the propriety of the effective date assigned for the grant of service connection for a left eye disability. Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional Veterans Claims Assistance Act (VCAA) notice or address prejudice from absent VCAA notice. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). As such, the Board finds that there is no prejudice in proceeding with a decision at this time. The Veteran contends that he is entitled to an effective date earlier than July 14, 2010, for the grant of service connection for a left eye disability. Specifically he claims the effective date for his service-connected left eye disability "should date back to 2005." He noted, "I made the same claims through the Miami DVA Office that was never considered for further review for reasons unknown to me. I called and sent a Notice of Disagreement in September of 2006 that went unanswered." (See January 2012 Notice of Disagreement). Pertinent to the time period in question, VA administrative claims process recognized formal and informal claims. A formal claim was one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, or his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an 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. Id. When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992); Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. See 38 C.F.R. § 3.155(a). In this instance, the Veteran filed his initial claim for service connection for a left eye disability, in October 2004. In November 2004 VA sent a VCAA notice letter to the Veteran informing him they needed additional information and evidence regarding his claim for service connection for a left eye disability. The letter also informed him about what VA would do and what he could do to help with his claim. Service connection for high myopia with myopathy degenerative changes (claimed as left eye condition secondary to in-service automobile accident) was denied in a September 2005 rating decision. Notice of the denial was sent to the Veteran in September 2005. In September 2006, the Veteran submitted a notice of disagreement to the September 2005 rating decision. In January 2007, the AOJ sent notice to the Veteran of receipt of his notice of disagreement and issued a statement of the case (SOC). The Veteran did not perfect an appeal in the matter by filing a timely Substantive Appeal (VA Form 9). Therefore, the September 2005 rating decision became final in September 2006, one year after notification of the denial. On March 13, 2008, however, the RO received a letter in which the Veteran inquired about the status of the September 2006 notice of disagreement. He noted he was informed that his case was closed because he had failed to respond to notice sent to him in January 2007. The Veteran informed the AOJ that he had not received the January 2007 notice. In an April 2008 response, the AOJ informed the Veteran that no action would be taken on his appeal because his right to appeal had expired [in the matter of entitlement to service connection for a left eye disability]. It appears that this letter was returned as undeliverable. On May 15, 2008, however, the Veteran received an untimely VA Form 9 referencing the left eye condition. In July 2010 the Veteran submitted VA Form 21-4138 [Statement in Support of Claim] noting that he wished to continue with his appeal and that he wanted to be scheduled for a hearing as soon as possible. On July 14, 2010 the AOJ received VA Form 9 from the Veteran on which he indicated he wanted to appeal all of the issues listed on the SOC and he wanted a Board hearing. On that same day the AOJ received a statement from the Veteran's representative, which noted "The veteran states he was never notified of his SOC denial and thought his appeal was still ongoing. He states someone at the VA told him they would honor his VA Form 9 submitted 5/15/2008 as timely. Please consider this request for perfecting his appeal. If the decision is made his Form 9 is not timely, please notify the veteran in writing." There is a presumption of regularity that applies to official acts, and "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). In this case, there is no indication that the January 2007 notice letter or the SOC sent to the Veteran was returned by the United States Postal Service as undeliverable. Therefore the presumption of regularity applies and it is presumed that the Veteran received the notice and the SOC concerning his claim, sent by mail. As noted, a timely appeal was not received; therefore, the Veteran did not perfect an appeal in the matter, and the September 2005 rating decision became final in September 2006, one year after notification of the denial. The AOJ construed the Veteran's untimely July 14, 2010 VA Form 9 as an informal claim to reopen the claim on the issue of service connection for a left eye disability. The Board notes, however, that the Veteran previously sent a status inquiry on this matter that was received on March 13, 2008, and within two months similarly furnished an untimely VA Form 9. The Board thus finds that the March 13, 2008 status inquiry date should be considered the date of claim for purposes of reopening, following the previous final denial. In short, the Board finds that the effective date for the grant of service connection for a left eye disability should be March 13, 2008. To this extent, the appeal is granted. ORDER Entitlement to an effective date of March 13, 2008 for the grant of service connection for a left eye disability is granted. REMAND Regarding the service connection claim for obesity, the Veteran contends that obesity played a major role in his being discharged from service. His DD Form 214 noted (under narrative reason for separation) "Other Physical/Mental Condition - Obesity" and he stated his obesity is caused by his service-connected adjustment disorder with mixed anxiety and depression mood and impulse control disorder. Generally obesity is not a disability for which VA compensation benefits are payable. The Veteran, however, has cited the following: "According to the VA/DoD CLINICAL PRACTICE GUIDELINE FOR SCREENING AND MANAGEMENT OF OVERWEIGHT AND OBESITY, Obesity is recognized as a chronic disease resulting from a combination of biological and environmental factors. Obesity is a significant health problem that deserves the same attention and long-term intervention as other serious, chronic health conditions." Further, the Veteran asserts that he has sleep apnea caused by his service-connected adjustment disorder with mixed anxiety and depression mood and impulse control disorder. He stated that "Medical studies have shown that a mental disorder is linked to and causes sleep disorders, such as sleep apnea." The Veteran has not been afforded VA examinations regarding the claims for service connection for obesity and sleep apnea. VA must provide a medical examination when there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i). Here, the Board finds that the low threshold of McClendon is met and a VA examination is necessary to decide these claims. Additionally, regarding the service connection claim for CTS, the July 2012 VA examiner noted that the Veteran worked in data entry from 1993 to 2001 and it was as likely as not that the bilateral CTS is related to his occupation in data entry for the past 19 years. The Veteran noted that his military occupational specialty in service was a jet mechanic, which involved the tedious duties of performing safety wiring on engines by reaching and stretching into tight places in the engines' compartment and using both hands to tie the wires. The examiner did not consider the Veteran's lay statements in that regard, and, as such, the Board finds the July 2012 examination is not adequate. An adequate VA medical examination must consider the Veteran's pertinent medical history. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). The Veteran further claims that the May 1985 automobile injury that occurring during service caused his CTS. A May 1985 emergency care and treatment report shows a left forearm laceration was sewn shut. He stated he received multiple trauma, left and right forearm lacerations and hand wounds that affected his motor and sensory, and caused ongoing pain. As the examiner did not provide an adequate opinion, and the Veteran contends that his claimed CTS is related to injuries sustain in an automobile accident in service, a remand is needed for an examination and medical opinion. Furthermore, the record indicates the Veteran received services under VA's Vocational Rehabilitation and Employment program. (See February 2017 letter from rehabilitation counselor.). However, his vocational rehabilitation records have not been associated with the claims file. In addition, the evidence indicates the Veteran receives ongoing VA treatment. Treatment records to November 2016 are of record. Accordingly, on remand the Veteran's vocational rehabilitation folder and outstanding VA treatment records (from November/December 2016) must be associated with the record. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Regarding the claim of service connection for obesity the Board notes that the VCAA notices of record do not address the service connection claim of obesity. Upon remand, send the Veteran VCAA notice that discusses direct and secondary service connection for obesity. Accordingly, the case is REMANDED for the following action: 1. The AOJ must furnish the Veteran with appropriate VCAA notice regarding the elements of direct and secondary service connection, specifically addressing the service connection claim of obesity. 2. The AOJ must associate the Veteran's VA treatment records from November/December 2016 to present, with his record. If any such records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be fully documented in the Veteran's record. 3. The AOJ must associate the Veteran's vocational rehabilitation folder with his record. If any such records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be fully documented in the Veteran's record. 4. After all available records have been associated with the Veteran's record, schedule the Veteran for VA examinations with appropriate examiners to determine the nature and etiology of each of the Veteran's claimed disabilities (obesity, sleep apnea and CTS). The examiners should review the record and the review must be noted in the examination reports. A copy of this Remand must be made available to the examiners in conjunction with the examinations. Based on a review of the Veteran's record, the results of physical examination, and the Veteran's statements regarding the development and treatment of his disabilities, the VA examiners are requested to complete the following: Obesity a) Opine, based on available medical documentation and current medical findings, whether obesity is considered a chronic disease, or is attributable to a particular diagnosis. The examiner should comment on the data from the VA/DoD Clinical Practice Guideline for Screening and Management of Overweight and Obesity cited by the Veteran and set forth above. b) Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity is related to active service or any incident of service. c) Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity was caused or aggravated by the Veteran's service-connected adjustment disorder with mixed anxiety and depression mood and impulse control disorder. If the examiner finds that the Veteran's obesity was aggravated by the service-connected adjustment disorder with mixed anxiety and depression mood and impulse control disorder, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. Sleep Apnea d) Determine whether the Veteran has a current diagnosis of sleep apnea that has been present at any time during the appeal period. e) Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea is related to active service or any incident of service. f) Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea was caused or aggravated by the Veteran's service-connected adjustment disorder with mixed anxiety and depression mood and impulse control. If the examiner finds that the Veteran's sleep apnea was aggravated by the service-connected adjustment disorder with mixed anxiety and depression mood and impulse control disorder, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. Carpel Tunnel Syndrome g) Determine whether the Veteran has a current diagnosis of CTS that has been present at any time during the appeal period. h) Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the diagnosed CTS is related to active service or any incident of service. The examiner is to consider the Veteran's involvement in an automobile accident in May 1985 where he sustained multiple trauma, left and right forearm lacerations and hand wounds. The examiner is to also consider that the Veteran served as a jet mechanic in service where his duties involved the tedious tasks of performing safety wiring on engines by reaching and stretching into tight places in the engines' compartment and using both hands to tie the wires; and that he performed data entry work after discharge from service for 19 years. The rationale for all opinions expressed must also be provided, and the rationale should include a discussion of any differing opinions of record. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and return the case to the Board. 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). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs