Citation Nr: 18141218 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 16-05 453 DATE: October 10, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for depression is granted. Entitlement to an earlier effective date for a grant of service connection for tinnitus is denied. Entitlement to an earlier effective date for a grant of service connection for a chronic pulmonary condition with restrictive and obstructive lung disease is denied. REMANDED Entitlement to a disability evaluation in excess of 10 percent for service-connected bilateral hearing loss is remanded. Entitlement to a compensable disability evaluation for a service-connected chronic pulmonary condition with restrictive and obstructive lung disease is remanded. Entitlement to an earlier effective date for a 10 percent disability evaluation for service-connected bilateral hearing loss is remanded. Entitlement to a 10 percent disability evaluation under 38 C.F.R. § 3.324 prior to June 4, 2013 for multiple non-compensable service connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his obstructive sleep apnea is at least as likely as not aggravated by his service-connected chronic pulmonary condition. 2. Resolving reasonable doubt in the Veteran’s favor, his depression is at least as likely as not related to his service-connected disabilities. 3. The RO granted entitlement to service connection for tinnitus effective June 4, 2013, the date the Veteran filed a claim for this disability. There is no evidence that he submitted an earlier claim. 4. The RO granted entitlement to service connection for a chronic pulmonary condition with restrictive and obstructive lung disease effective November 23, 2009, the date the Veteran filed a claim for this disability. There is no evidence that he submitted an earlier claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for depression have been met. 38 U.S.C. §§ 101, 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for entitlement to an earlier effective date for a grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110, 5121; 38 C.F.R. § 3.400, 3.1000. 4. The criteria for entitlement to an earlier effective date for a grant of service connection for a chronic pulmonary condition with restrictive and obstructive lung disease have not been met. 38 U.S.C. § 5110, 5121; 38 C.F.R. § 3.400, 3.1000. 38 U.S.C. § 5110, 5121; 38 C.F.R. § 3.400, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1971 to December 1973. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for obstructive sleep apnea The Veteran is seeking entitlement to service connection for obstructive sleep apnea, which he contends was caused or aggravated by his service-connected chronic pulmonary condition. The record reflects that the Veteran has a current diagnosis of obstructive sleep apnea. At issue is whether this current disability had onset in service or was caused or permanently aggravated by his active military service. The Veteran's service treatment records are negative for any complaints or diagnosis of a sleep disorder. He was diagnosed with obstructive sleep apnea in 2013. The Veteran was afforded a VA examination in June 2014. The VA examiner opined that the Veteran’s obstructive sleep apnea was more likely than not caused by his use of long-acting opioids to treat a non-service-connected back injury. However, in a June 2016 medical opinion, Dr. H.S. opined that while a number of non-service-connected factors could cause or aggravate the Veteran's obstructive sleep apnea, including his age, obesity, and opiod use, it was as likely as not his sleep apnea was also permanently aggravated by his service-connected pulmonary disorder, and that it would be impossible to determine how much aggravation was due to the Veteran's pulmonary condition compared to other, non-service-connected factors. Dr. H.S. explained that research has shown that chronic obstructive pulmonary disease and obstructive sleep apnea are often comorbid disabilities and that individuals who have been diagnosed with both conditions present more nocturnal oxygen desaturation then those with only COPD or sleep apnea alone. Based on the above evidence and interpreting any reasonable doubt in the Veteran's favor, entitlement to service connection for obstructive sleep apnea secondary to the Veteran's service connected chronic pulmonary condition is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for depression The Veteran is also seeking entitlement to service connection for depression, which he contends was caused or aggravated by his service-connected disabilities. The record reflects that the Veteran has a current diagnosis of depression. At issue is whether this current disability had onset in service or was caused or permanently aggravated by his active military service. The Veteran’s service treatment records are negative for any complaints or diagnosis of depression. Post-service, VA outpatient treatment records show complaints of depression related to chronic back pain associated with a 1997 work injury. However, in a June 2016 report, a private psychologist, Dr. H.H.G., concluded that given that the Veteran's service and non-service-connected disabilities result in overlapping symptoms, it is not possible to differentiate causation of the Veteran's depression. Instead, she opined that his psychiatric condition cannot be attributed to any particular medical condition, instead, “… all conditions may indeed contribute to overall decompensation and disability….” Based on the above evidence and interpreting any reasonable doubt in the Veteran’s favor, entitlement to service connection for depression to the Veteran’s service-connected disabilities is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Effective Date The effective date of a grant of service connection is governed by 38 U.S.C. § 5110 as implemented by 38 C.F.R. § 3.400. 38 U.S.C. § 5110 (a) states, “unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 (b)(1) states that “the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefore is received within one year from such date of discharge or release.” Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Generally, the effective date of an award based on a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110 (a). The implementing regulation specifies than an effective date of an award based upon a claim for increased disability rating “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400 (o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). 3. Entitlement to an earlier effective date for a grant of service connection for tinnitus The Veteran is seeking entitlement to an effective date earlier than June 4, 2013 for a grant of entitlement to service connection for tinnitus. The RO assigned this effective date based on a copy of a fax covers sheet dated June 4, 2013, which the RO accepted as a claim for increased evaluation for service-connected hearing loss and a VA examination was requested. During that examination, the Veteran reported ongoing, longstanding tinnitus and the examiner provided an opinion linking this reported tinnitus to the Veteran's service-connected hearing loss. Based on this opinion, service connection was established from the date VA received the claim for entitlement to increased evaluation for hearing loss. The Veteran has not identified, and the Board cannot find, any statement or submission by the Veteran that could be construed as an earlier claim for tinnitus. The Veteran filed a claim for bilateral hearing loss in November 2009, but did not submit a claim for tinnitus at that time. A VA audiological examination administered in January 2010 noted that the Veteran had not filed a claim for tinnitus and did not complain of tinnitus at the time of the evaluation. It appears he reported intermittent symptoms of tinnitus in the past, but the examiner did not relate these intermittent complaints to service. In the absence of either an explicit claim for service connection for tinnitus or clear evidence of any current disability that was related to service, the Board is not convinced that the RO should have inferred a claim for tinnitus at that time. Accordingly, the Board can find no basis to assign an effective date earlier than June 4, 2013, since under VA regulations, a grant of service connection cannot be earlier than the date a claim for benefits was received. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to an earlier effective date for a grant of service connection for a chronic pulmonary condition with restrictive and obstructive lung disease The Veteran has also challenged the effective date of the grant of entitlement to service connection for a chronic pulmonary condition. The Veteran's original claim for entitlement to service connection for a pulmonary condition was denied in a November 1998 RO decision, and he was notified of this decision on December 7, 1998. The Veteran did not appeal or submit new evidence within one year of the decision. In the absence of a timely notice of disagreement filed in relation to the November 1998 decision, the decision became final on December 7, 1999. On November 23, 2009, VA received the Veteran's request to reopen his claim for a lung condition. The Veteran has not identified, and the Board cannot find, any earlier request to reopen his previously denied claim. A November 2013 Decision Review Officer (DRO) decision granted service connection for a chronic pulmonary condition effective November 23, 2009, the date VA received the Veteran's request to reopen his claim for this condition. The law states that the effective date assigned for reopened claims will be the date of receipt of the reopened claim or the date entitlement arose, whichever is later. Here, the date the reopened claim was received appears to be later than the date entitlement arose. Accordingly, the November 23, 2009 date his reopened claim was received is the earliest possible effective date for the grant of service connection for chronic pulmonary condition with restrictive and obstructive lung disease. While the Board is sympathetic to the fact that the Veteran filed an earlier claim in 1998, he did not continuously pursue this claim and it became final. Therefore, the Veteran cannot be assigned an effective date back to the date he filed his original claim, unless he presents evidence of clear and unmistakable error (CUE) in the original November 1998 RO decision, which he has not done in this case. For the above reasons, entitlement to an earlier effective date for a grant of entitlement to service connection for a pulmonary condition is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 10 percent for service connected bilateral hearing loss is remanded. 2. Entitlement to a compensable disability evaluation for a service connected chronic pulmonary condition with restrictive and obstructive lung disease is remanded. The Veteran is seeking entitlement to higher disability evaluations of his service-connected bilateral hearing loss and chronic pulmonary condition. The Veteran was last afforded a VA examination of his hearing loss disability in July 2015 and of his chronic pulmonary condition in January 2016. Where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). Importantly, an examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). On remand, the Veteran should be scheduled for new VA examinations to determine the current severity of his service connected conditions. 3. Entitlement to an earlier effective date for a 10 percent disability evaluation for service-connected bilateral hearing loss is remanded. As the Board is remanding the claim for entitlement to an increased rating for bilateral hearing loss, the claim for an earlier effective date a 10 percent disability evaluation for bilateral hearing loss is inextricably intertwined with the increased rating claim. 4. Entitlement to a 10 percent disability evaluation under 38 C.F.R. § 3.324 prior to June 4, 2013 for multiple non-compensable service-connected disabilities is remanded. The Veteran is also seeking entitlement to a compensable disability evaluation under 38 C.F.R. § 3.324 based on multiple non-compensable service-connected disabilities. The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. As such, once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). The Board notes that for the period since June 4, 2013, the Veteran is in receipt of 10 percent ratings for his bilateral hearing loss and tinnitus, and 38 C.F.R. § 3.324 is rendered moot for this period under appeal. Therefore, the Veteran potential applicability of 38 C.F.R. § 3.324 can only pertain to the period prior to June 4, 2013. In this decision, the Board has granted entitlement to service connection for depression and obstructive sleep apnea, and an initial disability evaluation for these disabilities has not yet been assigned by the RO. The Board has also remanded the Veteran's claim for a higher disability evaluation of his chronic pulmonary condition. These disabilities’ evaluations and assigned effective dates may all affect the Veteran's eligibility under 38 C.F.R. § 3.324. Accordingly, on remand, the RO should readjudicate the Veteran's claim after assigning initial disability ratings for his service-connected depression and obstructive sleep apnea, as well as re-adjudicating the Veteran's remanded increased rating claim for chronic pulmonary condition. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to hearing loss alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected chronic pulmonary condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's chronic pulmonary condition alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. 3. After assigning initial disability evaluations for the Veteran's service-connected depression and sleep apnea and re-adjudicating the Veteran's remanded increased rating claims, readjudicate the Veteran's claim under 38 C.F.R. § 3.324. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. D. Anderson, Counsel