Citation Nr: 18144831 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-02 938 DATE: October 25, 2018 ORDER 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected chronic sinusitis and major depressive disorder, is denied. 2. Entitlement to an effective date earlier than December 11, 2010, for the grant of service connection for gastroesophageal reflux disease (GERD) is denied. 3. Entitlement to an effective date earlier than July 30, 2012, for the grant of service connection for a right ankle disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s OSA did not have its onset in service, and was not caused or aggravated by service or a service-connected disability. 2. On December 1, 2010, the Veteran filed a claim to reopen the appeal for service connection for GERD. 3. On July 30, 2012, the Veteran filed his original claim seeking service connection for a right ankle disability. CONCLUSIONS OF LAW 1. The criteria for service connection for OSA, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to an effective date earlier than December 11, 2010, for the grant of service connection for GERD have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. 3. The criteria for entitlement to an effective date earlier than July 30, 2012, for the grant of service connection for a right ankle disability have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to August 1980, and from January 1981 to January 2001. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from July 2012 and February 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction is currently with the RO in St. Paul, Minnesota. In March 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In July 2016, the Board remanded the OSA claim for further development. The Board also sought development of the claims for service connection for GERD and a right ankle disability, which was before it. A February 2017 rating decision awarded service connection for GERD and a right ankle disability. The Veteran has since perfected appeals for earlier effective dates for these service-connected disabilities. Thus, the Board has jurisdiction over these claims and will address them below. The issue of entitlement to an initial rating in excess of 10 percent for service-connected GERD was raised in a March 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). Service Connection Under the relevant laws and regulations, 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 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for OSA, to include as secondary to service-connected chronic sinusitis and major depressive disorder, is denied. The Veteran has been diagnosed with OSA. See May 2012 VA Examination Report. Thus, the first element of a service connection claim is satisfied. The Veteran asserts that his OSA is the result of his service-connected sinusitis and major depressive disorder. In this case, the preponderance of the evidence is against a finding that there is a link between the Veteran’s OSA and his service-connected disabilities or his military service. In May 2012, a VA examiner opined that it was less likely than not that the Veteran’s OSA was the result of his military service, or secondarily caused by his service-connected major depressive disorder. He noted that sleep apnea was not diagnosed until November 2006, and attributed this condition to alternative risk factors including obesity, nasal congestion, gender, and advancing age. The examiner further indicated that sleep apnea had not been found to be caused by a depressive disorder. A May 2014 VA examiner also concluded that the Veteran’s OSA was less likely than not related to his service-connected depressive disorder. She cited to extensive medical literature explaining the mechanics of sleep apnea, and emphasized that no link to depressive disorder had been identified by scientific research. Most recently, in September 2016, another VA examiner opined that the OSA was less likely than not due to the Veteran’s military service, based upon the lack of in-service symptomatology and the development of alternative risk factors after separation. He further concluded that the condition had not been caused or aggravated by the service-connected chronic sinusitis. The examiner supported his conclusions with medical literature regarding alternative risk factors for sleep apnea. Though he acknowledged that sinusitis can be a risk factor for OSA, he concluded that there was no evidence to support the contention that sinusitis caused the Veteran’s sleep apnea in this case. Instead, the examiner explained that the Veteran’s strongest risk factor for the development of OSA was his obesity, specifically the 25 percent increase in body weight between separation from service and his diagnosis. The examiner also determined that the condition had not been aggravated by sinusitis based upon the veteran’s decreased use of his CPAP machine. The Board affords the VA opinions a high probative value. In this regard, the examiners reviewed the Veteran’s file and offered a comprehensive discussion analyzing all of the pertinent evidence of record and thoroughly explaining the bases for the opinions, as supported by medical literature. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). As these are against the claim, the Board is persuaded that service connection for OSA is not warranted. As discussed above, lay persons are competent to provide opinions on some medical issues. See Kahana, supra. In this case, the Veteran is not competent to render an etiology opinion for his OSA. Determining the etiology of the Veteran’s sleep apnea requires medical inquiry into respiratory processes and functioning. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Because the Veteran’s lay opinion is not competent in this case it is therefore not probative. It cannot satisfy the nexus element of a service connection claim. Therefore, service connection may not be established based upon the Veteran’s assertion that his OSA was caused by his military service, or caused or aggravated by service connected disability. As such, the preponderance of the evidence is against service connection for OSA, to include as secondary to the service-connected chronic sinusitis or depressive disorder. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Earlier Effective Date In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his 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 Veteran, it will be considered filed as of the date of receipt of the informal claim. Reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157(a) (2014). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2014). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 1. Entitlement to an effective date earlier than December 11, 2010, for the grant of service connection for GERD is denied. The Veteran asserts that the effective date for the award of service connection for GERD should be earlier than the assigned effective date of December 11, 2010. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran after discharge but prior to December 11, 2010 indicates an earlier attempt to apply for service connection for GERD. In the present case, the Veteran separated from active duty in January 2001, and sought service connection for GERD upon discharge. See November 2000 Statement in Support of Claim. As noted above, the assignment of an effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran’s claim for service connection for GERD was initially denied in a September 2001 rating decision. However, the Veteran did not file a notice of disagreement within one year of the rating decision and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The Veteran requested to reopen the claim of entitlement to service connection for GERD in a December 11, 2010 Statement in Support of Claim. The effective date based on submission of new and material evidence after a final disallowance is the date of the receipt of the claim. 38 U.S.C. § 5110 (a) (201238 C.F.R. §§ 3.400 (2017); see also Sears v. Principi, 16 Vet. App. 244, 248 (2002). The Board notes that medical evidence received prior to December 11, 2010, in conjunction with an increased rating claim for a different disability, reflects that the Veteran experienced gastrointestinal symptoms. See South Coast Private Treatment Record dated November 1, 2002 and Mercy Clinic Private Treatment Record dated July 13, 2006. However, these records were not submitted in conjunction with a new claim for service connection for GERD. Thus, these treatment records in and of themselves would not warrant the assignment of an effective date earlier than December 11, 2010, as they did not show reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2014). There is no indication that a claim, formal or informal, seeking to reopen the claim for service connection for GERD was received prior to December 2010. Although private treatment records may suggest that the Veteran had related symptomatology during that time, these records do not qualify as an informal claim for service connection, as they do not identify service connection for GERD as a benefit sought. In accordance with the applicable regulations concerning the assignment of effective dates, December 11, 2010, is the earliest date for the award of service connection for GERD as it is the date on which the Veteran’s claim of entitlement to service connection for a previously denied disability was received. See 38 C.F.R. § 3.400. As the previous denial was final, an earlier effective date prior to the December 2010 claim cannot be established. 2. Entitlement to an effective date earlier than July 30, 2012, for the grant of service connection for a right ankle disability is denied. The Veteran is seeking an effective date prior to July 30, 2012, for the award of service connection for a right ankle disability. He contends that service connection should be granted back to the date of his discharge from service. See March 2017 Statement in Support of Claim. Following its review of the record, the Board finds that July 30, 2012, is the correct effective date for the award of service connection for a right ankle disability, because that is the date of receipt of his claim. The Veteran separated from active service in January 2001. He filed his original claim for service connection for a right ankle disability on July 30, 2012. There is no indication of a claim for service connection for this disability within one year of the Veteran’s date of separation from active duty service in January 2001 or within the 11 years following his separation. The Board has reviewed the Veteran’s file to determine if any formal or informal claim was received between his 2001 separation from service and July 30, 2012. No such claim was made. Although medical evidence has shown the existence of this condition prior to July 30, 2012, there is no evidence that the Veteran intended to file the claim prior to this date. See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder). In reaching this decision, the Board has considered the Veteran’s written statements. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel