Citation Nr: 18146927 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 16-18 958A DATE: November 2, 2018 ORDER Entitlement to an effective date prior to August 11, 2014, for the award of service connection for thoracolumbar myositis and muscle spasm (herein referred to as a low back condition), to include on the basis of clear and unmistakable error (CUE) in the November 13, 1986 rating decision that initially denied service connection for this disability, is denied. Entitlement to an effective date prior to August 11, 2014, for the award of service connection for derangement of the left temporomandibular joint (TMJ), to include on the basis of CUE in the November 23, 1993 rating decision that denied service connection for this disability, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to the Veteran's service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran’s July 10, 1986, claim of entitlement to service connection for a low back condition was denied in a November 13, 1986, rating decision. 2. The November 13, 1987, rating decision considered the correct facts and did not incorrectly apply any pertinent law or regulation; it does not contain CUE. 3. On July 24, 1996, the Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for a low back condition; the May 7, 1997, rating decision declined to reopen this claim on the basis that no new and material evidence had been submitted; the Veteran did not appeal this determination and it became final. 4. The Veterans again petitioned to reopen his previously denied claim of entitlement to service connection for a low back condition on August 11, 2014. 5. The Veteran’s September 3, 1993, claim of entitlement to service connection for derangement of the left TMJ was denied in a November 23, 1993, rating decision. 6. On February 3, 1994, the Veteran submitted a notice of disagreement (NOD) with the November 23, 1993, rating decision; a statement of the case (SOC) was issued on September 30, 1994, but the Veteran failed to perfect his appeal; the November 23, 1993 rating decision became final. 7. On July 24, 1996, the Veteran submitted a petition to reopen his previously denied claim of entitlement to service connection for derangement of the left TMJ; the May 7, 1997, rating decision declined to reopen this claim on the basis that no new and material evidence had been submitted. 8. A second rating decision was issued on April 13, 1999, which continued to deny the Veteran’s petition to reopen his previously denied claim of entitlement to service connection for derangement of the left TMJ. 9. The Veteran submitted an NOD for his TMJ condition on May 3, 1999, and an SOC was issued on December 16, 1999. The Veteran failed to perfect his appeal and the May 3, 1999, rating decision became final. 10. The November 23, 1993, rating decision considered the correct facts and did not incorrectly apply any pertinent law or regulation; it does not contain CUE. 11. The Veterans second petition to reopen his previously denied claim of entitlement to service connection for derangement of the left TMJ was received on August 11, 2014. CONCLUSIONS OF LAW 1. The November 13, 1986, rating decision that denied entitlement to service connection for a low back condition, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.105 (a), 3.156(b), 20.200 (2018). 2. The criteria for an effective date prior to August 11, 2014, for entitlement to service connection for a low back condition have not been met, to include on the basis of CUE. 38 U.S.C. § 310 (West 1982); 38 C.F.R. § 3.303 (1986); 38 U.S.C. §§ 7105 (c) (West 2012); 38 C.F.R. §§ 3.105 (a), 3.155(b), 3.400(q)(1)(ii) (2018). 3. The November 23, 1993, rating decision that denied entitlement to service connection for derangement of the left TMJ, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 4. The criteria for an effective date prior to August 11, 2014, for entitlement to service connection for derangement of the left TMJ have not been met, to include on the basis of CUE. 38 U.S.C. § 310 (West 1988); 38 C.F.R. § 3.303 (1993); 38 U.S.C. §§ 7105 (c) (West 2012); 38 C.F.R. §§ 3.105 (a), 3.155(b), 3.400(q)(1)(ii) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from January 1983 to May 1986. These matters come before the Board of Veterans’ Appeal (Board) on appeal from the April 14, 2015, rating decision of a Department of Veterans Affairs (VA) regional office, which granted entitlement to service connection for a low back condition and derangement of the left TMJ, effective August 11, 2014. Duties to Assist and to Notify The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to the Veteran’s claims of entitlement to earlier effective dates for the award of service connection for his low back condition and his derangement of the left TMJ, to include on the basis of CUE. Baldwin v. Principi, 15 Vet. App. 302 (2001). Regulations and legal precedents establish that a review for CUE is only based upon the evidence of record at the time the decision was entered. Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). Regarding the Veteran’s current claims of entitlement to earlier effective dates for the award of service connection for his low back condition and TMJ, prior to the issuance of the April 14, 2015, rating decision on appeal, a notification letter was sent to the Veteran which addressed his underlying claims. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. The April 14, 2015, rating decision granted service connection for both conditions, effective August 11, 2014. The Board observes that a claim for an earlier effective date for the grant of service connection is a downstream issue from the original award of such benefit. Grantham v. Brown, 114 F.3d 1156 (1997). VA’s General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). As such, no additional 38 U.S.C. § 5103 (a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to the duty to assist as it pertains to the Veteran’s CUE and earlier effective date claims, the Board notes that relevant medical evidence was reviewed by the Agency of Original Jurisdiction (AOJ) in connection with the adjudication of the Veteran’s service connection claims. However, pertinent to his CUE and effective date claims, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his application to reopen his claim for service connection for a back condition and TMJ, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already of record. There is no outstanding information or evidence that would help substantiate the Veteran’s claims. See VAOPGCPREC 5-04 (June 23, 2004). Earlier Effective Dates, Generally In general, 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 the later. 38 C.F.R. § 3.400. 1. Entitlement to an earlier effective date, prior to August 11, 2014, for the award of service connection for a low back condition, to include on the basis of CUE. The Veteran states that the effective date for his service-connected low back condition should be earlier than August 11, 2014. Specifically, he claims that the AOJ’s original denial of his claim was clearly and mistakably erroneous and that his original date of claim should be the appropriate effective date. The Board disagrees. The Veteran’s original claim of entitlement to service connection for a low back condition was received on July 10, 1986. In a rating decision dated November 13, 1986, the claim of entitlement to service connection for a low back condition was denied. The decision noted that the Veteran had complained of low back pain in service on May 6, 1985 (noting that he experienced pain when running, lifting, or bending over) and on October 11, 1985. On his May 14, 1986, discharge examination, a history of low back pain secondary to strain was noted. The Veteran did not complain of low back pain at that time and the examiner indicated that his back was within normal limits. The claim was denied on the basis of no current disability. The Veteran was informed of this decision in a January 14, 1987, letter which also provided him with his appellate rights. The Veteran submitted a petition to reopen his previously denied claim of entitlement to service connection for a low back condition on July 24, 1996. The May 7, 1997, rating decision declined to reopen the claim on the grounds that new and material evidence had not been submitted. Furthermore, no new and material evidence was received prior to the expiration of the one year appeal period. Therefore, the May 7, 1997, rating decision is final, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105 (a), 3.156(b), 20.200. Once a rating decision is final, it may not be revised except on the basis of CUE. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.105 (a). The Veteran contends that the November 13, 1986, rating decision contains CUE, that his original claim should have been granted, and that this would provide for an earlier effective date. CUE is a very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The clear and unmistakable evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) To establish CUE the moving party must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e. more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be “undebatable” and of the sort “which had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). The laws and regulations that govern the award of service connection are essentially unchanged since November 1986. Then, as now, the laws and regulations state that service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 310 (West 1988); 38 C.F.R. § 3.303 (1986). The evidence available at the time of the November 13, 1986, rating decision included the Veteran’s service treatment records (STRs). The associated STRs indicated that upon his enlistment in November 1982, a physical examination yielded normal findings and the Veteran was deemed qualified for service. In the comments section, the Veteran acknowledged a prior injury, namely, that he sustained a broken clavicle during a basketball at the age of 12. No other conditions were reported. In a concurrent report of medical history, the Veteran indicated that he was in good health. No other conditions were reported. In May 1965, the Veteran complained of low back pain while running, lifting objects, or bending over. The pain was described as impacting the lower back, midline region. Pain on palpation was noted. In October 1985, the Veteran complained of weakness and low back pain over a 2-week period. Complaints of back pain were also reported in December 1985 and a physician’s assist prescribed oral pain medication. In May 1986, the Veteran’s separation physical examination indicated that his back was within normal limits and no complaints were indicated. After careful review of the November 13, 1986, rating decision, the Board must conclude that it does not contain CUE. This decision denied service connection on the basis that there was no currently diagnosed low back condition and that the Veteran had no complaints of low back pain at the time of his separation from service. A review of the evidence available at that time confirms that this was an accurate finding. The existence of a current disability is required in order to grant entitlement to service connection. The Veteran contends that had he been afforded a VA examination in conjunction with his original claim, he would have been diagnosed with a low back condition, and that this condition would have led to a grant of service connection. Upon review of the evidence, the Veteran has not alleged that incorrect facts, as they were known at the time, were before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. His contention that had he been afforded a VA examination, he would have been granted service connection for a low back condition is not undebatable. There is no indication that had an examination been performed, that it would have manifestly changed the outcome of the determination at the time it was made. The Board reaches these conclusions based on the law that existed at the time of the prior adjudication. See Damrel, supra. Accordingly, the Board must find that the earliest possible effective date for the award of service connection for the Veteran’s low back condition is August 11, 2014. This is the date on which his request to reopen his previously denied claim was received. The effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (q)(1)(ii). The United States Court of Appeals for Veterans Claims (Court) has held that the effective date of the grant of service connection based on a reopened claim cannot be the date of receipt of the claim that was previously and finally denied. Lalonde v. West, 12 Vet. App. 377, 382 (1999), held that the effective date of award for service connection is not based on the date of earliest medical evidence demonstrating a causal connection, but on the date that the application on which service connection was eventually awarded was filed with VA. The Board also notes that a claim that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. The fact that the Veteran had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on the current application. Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). The evidence indicates that the Veteran was entitled to the award of service connection for a low back condition on the date that he submitted his new claim on August 11, 2014. Therefore, the current effective date of August 11, 2014, is correct and entitlement to an earlier effective date is not established. 38 C.F.R. § 3.400 (q)(1)(ii). 2. Entitlement to an earlier effective date, prior to August 11, 2014, for the grant of service connection for derangement of the left TMJ, to include on the basis of CUE. The Veteran states that the effective date for his service-connected derangement of the left TMJ should be earlier than August 11, 2014. Specifically, he claims that the AOJ’s original denial of his claim was clearly and mistakably erroneous and that his original date of claim should be the appropriate effective date. The Board disagrees. The Veteran’s original claim of entitlement to service connection for derangement of the left TMJ was received on September 3, 1993. In a rating decision dated November 23, 1993, the claim of entitlement to service connection for derangement of the left TMJ was denied. The decision noted that the Veteran had complained of jaw pain in September 1985. On his May 14, 1986, discharge examination, no jaw disability or pain were noted. The claim was denied on the basis of no current disability. The Veteran was informed of this decision in a December 3, 1993, letter which also provided him with his appellate rights. The Veteran submitted an NOD with this determination in February 1994, and an SOC was issued in September 1994. The Veteran did not perfect his appeal and the November 23, 1993, rating decision became final. The Veteran submitted a petition to reopen his previously denied claim of entitlement to service connection for derangement of the left TMJ on July 24, 1996. The May 7, 1997, rating decision declined to reopen the claim on the grounds that new and material evidence had not been submitted. An April 13, 1999, rating decision was later issued, continuing the denial of the Veteran’s petition to reopen. On May 3, 1999, the Veteran submitted an NOD, and an SOC was issued in December 1999. The Veteran did not perfect his appeal and the April 1999 rating decision became final. Once a rating decision is final, it may not be revised except on the basis of CUE. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.105 (a). The Veteran contends that the November 23, 1993, rating decision contains CUE, that his original claim should have been granted, and that this would provide for an earlier effective date. The laws and regulations that govern the award of service connection are essentially unchanged since November 1993. Then, as now, the laws and regulations state that service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 310 (West 1988); 38 C.F.R. § 3.303 (1993). The evidence available at the time of the November 1993 rating decision consisted of the Veteran’s STRs. Review of the STRs affirms that the Veteran reported a physical assault in service and was treated for pain and swelling to the left and right jaw. A diagnosis of a mandible fracture on the left side was noted in September 1985. Thereafter, no further complaints of symptoms were reported. The Veteran’s separation examination in May 1986 yielded normal physical findings. After careful review of the November 23, 1993, rating decision, the Board must conclude that it does not contain CUE. This decision denied service connection on the basis that there was no currently diagnosed jaw disability and that the Veteran had no complaints of jaw pain at the time of his separation from service. A review of the evidence available at that time confirms that this was an accurate finding. The existence of a current disability is required in order to grant entitlement to service connection. The Veteran contends that had he been afforded a VA examination in conjunction with his original claim, he would have been diagnosed with derangement of the left TMJ, and that this condition would have led to a grant of service connection. Upon review of the evidence, the Veteran has not alleged that incorrect facts, as they were known at the time, were before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. His contention that had he been afforded a VA examination, he would have been granted service connection for derangement of the left TMJ, is not undebatable. There is no indication that had an examination been performed, that it would have manifestly changed the outcome of the determination at the time it was made. The Board reaches these conclusions based on the law that existed at the time of the prior adjudication. See Damrel, supra. Accordingly, the Board must find that the earliest possible effective date for the award of service connection for the Veteran’s derangement of the left TMJ is August 11, 2014. This is the date on which his request to reopen his previously denied claim was received. 38 C.F.R. § 3.400 (q)(1)(ii). The Board also notes that a claim that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. The fact that the Veteran had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on the current application. Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). The evidence indicates that the Veteran was entitled to the award of service connection for derangement of the left TMJ on the date that he submitted his new claim on August 11, 2014. Therefore, the current effective date of August 11, 2014, is correct and entitlement to an earlier effective date is not established. 38 C.F.R. § 3.400 (q)(1)(ii). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service-connected disabilities, is remanded. A remand is necessary with respect to this issue to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to service connection for obstructive sleep apnea, to include as secondary to his service-connected post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and hypertension. Notably, in his June 2015 NOD, the Veteran asserted that multiple studies explored a possible causal linkage between mental health conditions, to include PTSD, and sleep disturbances. Some explore the association in relation to Veterans who suffered sexual trauma or assault in service. No articles were attached to his correspondence. The Veteran requested a new VA examination. Review of the record indicates that the Veteran was afforded a VA examination in April 2018. On examination, the examiner was invited to opine on whether it is at least as likely as not that the Veteran’s obstructive sleep apnea was aggravated beyond its natural progression by his service-connected hypertension, unstable angina, and/or TBI. The examiner acknowledged a review of his prior VA examinations, to include examinations in February and March 2015 for sleep apnea, examinations in June 2014 and August 2016 for TBI, and an examination in May 2014 for heart disease. Upon review of the foregoing, the examiner opined that the Veteran’s sleep apnea, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness, to include TBI. In support of the stated conclusion, the examiner asserted that there “is” evidence on medical literature of hypertension, unstable or traumatic brain injury as a possible cause of aggravation of obstructive sleep apnea. However, no pathophysiological relationship was established between sleep apnea and hypertension, unstable angina and TBI. In email correspondence, dated April 2018, the VA examiner was requested to clarify the appearance of “conflicting” findings. Specifically, the examiner suggested the existence of medical literature which acknowledged a causal linkage between sleep apnea and the Veteran’s service-connected hypertension, unstable or TBI. The opinion also stated that no pathophysiological relationship existed between sleep apnea and hypertension, unstable angina or traumatic brain injury. The examiner’s findings also asserted that the Veteran’s sleep apnea clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. In fact, the evidence shows that the Veteran was discharged in 1986 and diagnosed with sleep apnea in 2014. Thus, a finding of a pre-existing condition is not warranted by the evidence. Corrections were noted via email. Also in April 2018, a VA examiner opined that the Veteran’s sleep apnea was unrelated to his service-connected to PTSD, to include as due to aggravation. In support of the stated conclusion, the examiner noted a review of the relevant medical literature and found no basis for concluding that PTSD as possible cause or risk factor for sleep apnea. The opinion noted that sleep apnea can be caused by a person’s physical structure or medical conditions, to include obesity, large tonsils, endocrine disorders, neuromuscular disorders, heart or kidney failure, certain genetic syndromes, and premature birth. Again, email correspondence noted a request for an opinion on aggravation. In an addendum opinion, the examiner asserted that no pathophysiological relationship exists between sleep apnea and PTSD. Therefore, it is less likely than not that sleep apnea aggravated by service-connected PTSD. In a September 2018 Appellate Brief, the Veteran suggested that a new opinion is required, by a different examiner, to resolve the conflicting findings as to aggravation of his obstructive sleep apnea by his service connected disabilities. The Board concurs. Further, while the appeal is in remand status any outstanding VA and private treatment records should be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The matter is REMANDED for the following action: 1. Obtain updated VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination by an appropriate clinician, other than the examiner who conducted the prior examinations, to obtain an opinion as to the nature and etiology of his sleep apnea. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination and the record should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies. The examiner is specifically requested to review, evaluate, and resolve the multiple conflicting opinions as to any causal linkage between the Veteran’s sleep apnea and his service connected disabilities, to include as due to aggravation. Thereafter, the examiner is requested to opine whether it is at least as likely as not (more than a 50 percent probability) that the Veteran’s sleep apnea was caused by or otherwise related to active service, to include possible aggravation by his service-connected disabilities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Thereafter, the RO must re-adjudicate the Veteran’s claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental SOC and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. 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. 38 U.S.C. §§ 5109B, 7112 (West 2012). K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel