Citation Nr: 1804742	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  12-20 176	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an effective date earlier than August 3, 2009, for a 10 percent rating for right hip tendonitis.

2.  Entitlement to an effective date earlier than August 3, 2009, for the grant of service connection for asthma.

3.  Entitlement to a rating for right hip tendonitis in excess of 10 percent prior to August 23, 2011; 20 percent from August 23, 2011, to January 7, 2016; and 40 percent from January 7, 2016.

4.  Entitlement to an initial rating for asthma with sleep apnea in excess of 30 percent prior to September 10, 2013, and in excess of 50 percent thereafter.

5.  Entitlement to service connection for a left hip disability.

6.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel


INTRODUCTION

The Veteran had active duty from August 1978 to August 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In September 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  The Veteran raised the issue of whether she is unemployable due, in part, to service-connected disabilities.  The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issue on appeal.

In May 2014, the RO increased the rating for the Veteran's asthma with sleep apnea to 50 percent, effective September 10, 2013.  However, as such did not constitute a full grant of the benefit sought on appeal, the issue remains in appellate status.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

FINDINGS OF FACT

1.  The Veteran was separated from active service in August 1981.

2.  The Veteran's right hip tendonitis has manifested with pain and limitation of motion since at least 1995.

3.  At the hearing in September 2017, prior to the promulgation of a decision, the Veteran requested to withdraw the issue of entitlement to a rating for right hip tendonitis in excess of 10 percent prior to August 23, 2011; 20 percent from August 23, 2011, to January 7, 2016; and 40 percent from January 7, 2016.

4.  Throughout the pendency of the appeal, the Veteran's asthma has manifested by FEV-1/FVC of 40 to 55 percent.

5.  The Veteran's left hip strain is related to service.

6.  Since September 3, 2015, the Veteran's service-connected disabilities have precluded her from obtaining and maintaining substantial and gainful employment consistent with her educational and occupational experience.


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to August 3, 2009, for the assignment of a 10 percent rating for right hip tendonitis have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2017).

2.  The criteria for an effective date prior to August 3, 2009, for the grant of service connection for asthma have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2017).

3.  The criteria for the withdrawal of the substantive appeal regarding the claim of right hip tendonitis in excess of 10 percent prior to August 23, 2011; 20 percent from August 23, 2011, to January 7, 2016; and 40 percent from January 7, 2016 have been met.  38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017).

4.  The criteria for an initial 60 percent rating for asthma with sleep apnea have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2017).

5.  The criteria for service connection for left hip strain have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

6.  Effective September 3, 2015, the criteria for a TDIU rating have been met.  38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawn Claim

An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  At the hearing in September 2017, prior to the promulgation of a decision, the Veteran requested to withdraw the issue of entitlement to a rating for right hip tendonitis in excess of 10 percent prior to August 23, 2011; 20 percent from August 23, 2011, to January 7, 2016; and 40 percent from January 7, 2016.  Accordingly, the Board does not have jurisdiction to review this appellate claim, and it is dismissed.

Earlier Effective Dates

The Veteran seeks effective dates earlier than August 3, 2009, for the grant of service connection for asthma and a 10 percent rating for right hip tendonitis.

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).

The effective date of an increased rating is the date of receipt of claim or date entitlement arose, whichever is later.  The earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment.  38 C.F.R. § 3.400(o).

The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing."  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155 (2015).

The Veteran served on active duty from August 1978 to August 1981.

As to the date of entitlement, the evidence shows a history of asthma as early as 2005 and chronic hip pain as early as 1995.  See, e.g., Private treatment records (August 11, 1995; November 29, 2005).  Accordingly, the case turns on the date of receipt of the Veteran's claims as the effective date is the later of these two aspects of the claims.

As to the date of claim, the Veteran testified that she initially submitted claims to her representative in April 2008; however, the representative failed to file her claims.  Upon learning that her claims had not been filed, the Veteran submitted her on August 3, 2009, claim. The Veteran contends her claims should be effective November 20, 2007, or April 2008.  See Notice of Disagreement (November 1, 2010); Board hearing (September 2017).

Historically, in March 2003, the RO granted service connection for right hip tendonitis and awarded a noncompensable rating effective September 19, 2002.

On November 20, 2007, the Veteran requested to "reopen my for service connected compensation.  Specific issues and supporting documentation to follow."

On April 23, 2008, the RO notified the Veteran that additional information is needed to file a claim for benefits.

On April 24, 2009, the Veteran stated that she sent an appeal to her representative in May 2008, but he never filed it.  She also submitted medical records ranging from 1995 to present.

On May 20, 2009, the RO notified the Veteran that her prior correspondence have not amounted to a claim because she failed to identify the benefit sought.

On July 30, 2009, the Veteran requested a copy of her claims file and resubmitted copies of her prior correspondence.

On August 3, 2009, the Veteran submitted a transmittal sheet indicating that she wishes to apply for compensation benefits.

On December 8, 2009, the RO received a statement whereby the Veteran requested to "reopen service connection claims for bilateral hip condition and asthma."

In August 2010, the RO granted service connection for asthma and a 10 percent rating for right hip tendonitis, both effective August 3, 2009.

In consideration of this evidence, the Board concludes that an effective date prior to August 3, 2009, is not warranted.  The rationale is that the December 8, 2009, statement is the earliest evidence of a claim of service connection for asthma or an increased rating for right hip tendonitis.

First, the fact that the Veteran's representative failed to file her claim in April 2008 does not relieve the need to file a claim with VA.

Second, none of the correspondence received from November 20, 2007, to December 7, 2009, identified the benefit sought, that is, service connection for asthma or an increased rating for right hip tendonitis.  Indeed, in April 23, 2008, the RO specifically asked the Veteran to identify the benefit(s) sought; however, show did not do so until her December 8, 2009, submission.  Additionally, the medical records submitted prior to December 8, 2009, do not meet the criteria of a claim as they do not identify the benefit sought.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that the mere receipt of medical records could not be construed as an informal claim).  Significantly, any claim must identify the benefit sought.  See Brokowski v. Shinseki, 23 Vet. App. at 84.

In sum, the Board finds that none of the correspondence received prior to December 8, 2009, meet the criteria for a claim.  As such, the preponderance of the evidence is against the claim for effective dates prior to August 3, 2009, for the grant of service connection for asthma or a 10 percent rating for right hip tendonitis; there is no doubt to be resolved; and earlier effective dates are not warranted.

Asthma

The Veteran seeks an initial rating for asthma with sleep apnea in excess of 30 percent prior to September 10, 2013, and in excess of 50 percent thereafter.

The Veteran's asthma with sleep apnea is currently rated under Diagnostic Code 6602-6847.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27.  In this case, the Veteran's asthma with sleep apnea has been evaluated under the criteria for sleep apnea.  For the reasons discussed below, the Board finds that the disability is properly rated under Diagnostic Code 6602, as asthma is the predominant disability.  See Urban v. Shulkin, 29 Vet. App. 82 (2017) (finding that a single disability rating is warranted for service-connected asthma and sleep apnea); 38 C.F.R. § 4.96(a).

Under Diagnostic Code 6602, a 10 percent rating is warranted for FEV-1 of 71to 80 percent predicted, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB) 66 to 80 percent predicted.  A 30 percent rating, is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted.  A 60 percent rating is warranted for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.  38 C.F.R. § 4.97.

Under Diagnostic Code 6847, a noncompensable rating is warranted for asymptomatic sleep apnea with documented sleep disorder breathing.  A 30 percent rating is warranted for sleep apnea with persistent day-time hypersomnolence.  A 50 percent rating is warranted for sleep apnea requiring the use of a breathing assistance device such as a CPAP machine.  A 100 percent rating is warranted for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy.  See 38 C.F.R. § 4.97.

The Board finds that an initial 60 percent rating for asthma is warranted under Diagnostic Code 6602.  In this regard, FEV-1/FVC was 55 percent on January 2016 VA examination and 47 percent on July 7, 2017.  Additionally, the Veteran credibly testified that she has experienced consistent symptoms throughout the appeal.  While a February 17, 2017, VA treatment record shows that FEV-1/FVC was 62 percent, the Board resolves any doubt in the Veteran's favor and finds that the Veteran meets the criteria for an initial 60 percent rating for asthma.

As to the next higher rating, a 100 percent, the evidence does not suggest and the Veteran does not contend that she has experienced FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.  See 38 C.F.R. § 4.97, Diagnostic Code 6602.  Additionally, the evidence does not suggest that the Veteran's disability has manifested by sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy.  See id. at Diagnostic Code 6847.  Accordingly, a 100 percent is not warranted.

Left Hip Disability

The Veteran seeks service connection for a left hip disability, which she relates to the in-service injury that caused her service-connected right hip disability, currently rated 40 percent disabling.  The Veteran has credibly testified to left hip pain since service.

In March 2014, a VA examiner diagnosed left hip strain and opined that such is at least as likely as not related to the Veteran's military service.  The examiner noted that the Veteran's service-connected right hip disability causes limitation of motion in all directions and requires assistive device, thereby suggesting that such could have contributed to the Veteran's current left hip disability.  The examiner nonetheless concluded that the Veteran's report of left hip pain in and since service sufficiently relates the current disability to service.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a).

The only evidence pertaining to the etiology of the Veteran's current left hip strain is her credible report of pain since service and the March 2014 VA examiner's opinion relating the disability to service.  This opinion is based on a review of the Veteran's relevant medical history, and the Board finds the opinion highly probative.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  After resolving any doubt in the Veteran's favor, the Board finds that her current left hip strain is related to service.  Thus, service connection for left hip strain is warranted.

TDIU

The Veteran seeks entitlement to a TDIU.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

The Veteran was last employed full time on September 3, 2015.  Since that time her service-connected disabilities have exceeded the schedular rating requirements for a TDIU.  More importantly, since that time, she has been unable to secure or maintain substantially gainful employment consistent with her educational and occupation experience due to the combined impact of her service-connected depression, rated 70 percent disabling; asthma, rated 60 percent disabling; sleep apnea, rated 50 percent disabling; right hip tendonitis and lumbar strain, each rated 40 percent disabling; sinusitis and rhinitis, each rated 30 percent disabling; right thigh impairment, rated 20 percent disabling; and GERD and right thigh limitation of extension, each rated 10 percent disabling.  Prior to September 3, 2015, the Veteran's actual fulltime employment affirmatively opposes any notion that she was unable to secure and maintain substantial gainful employment.

After resolving any doubt in the Veteran's favor, the Board finds that a TDIU from September 3, 2015, is warranted.



ORDER

An effective date earlier than August 3, 2009, for a 10 percent rating for right hip tendonitis is denied.

An effective date earlier than August 3, 2009, for service connection for asthma is denied.

The appeal regarding the issue of entitlement to a rating for right hip tendonitis in excess of 10 percent prior to August 23, 2011; 20 percent from August 23, 2011, to January 7, 2016; and 40 percent from January 7, 2016, is dismissed.

Subject to the law and regulations governing payment of monetary benefits, an initial 60 percent rating for asthma with sleep apnea is granted.

Service connection for a left hip disability is granted.

Subject to the law and regulations governing payment of monetary benefits, effective September 3, 2015, a TDIU is granted.





____________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs