Citation Nr: 18148425 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-44 708 DATE: November 7, 2018 ORDER Entitlement to service connection for residuals of a stroke, to including as due to herbicide exposure is stayed. New and material evidence having been received, the Veteran’s claim of entitlement ot service connection for mild traumatic brain injury (TBI) (also claimed as memory loss from head injury with a cerebral concussion) is reopened. This appeal is granted to this extent only. Entitlement to service connection for TBI (also claimed as memory loss from head injury with a cerebral concussion) is denied. Entitlement to service connection for depressive disorder is granted. Entitlement to an earlier effective date prior to June 30, 2014 for a grant of service connection and award of 30 percent rating for asbestosis related to pleural disease due to exposure to asbestos is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial disability rating in excess of 30 percent for service-connected asbestosis related to pleural disease due to exposure to asbestos is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In January 1969 rating decision, the Department of Veterans Affairs (VA) regional office (RO) denied service connection for a concussion, and the Veteran did not appeal the decision. 2. The evidence added to the record since the January 1969 rating decision denying entitlement to service connection for a concussion is neither cumulative nor redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating the Veteran’s claim. 3. The Veteran has shown to have sustain a mild TBI in-service, but the TBI resolved itself and no current residuals of such injury are shown. 4. The evidence is in relative equipoise that the Veteran’s depressive disorder was caused by his service-connected asbestosis related to pleural disease. 5. The currently assigned effective date of June 30, 2014 for service-connected asbestosis related to pleural disease is the date the claim of entitlement to service connection for the disability was received. CONCLUSIONS OF LAW 1. The January 1969 rating decision that denied the Veteran’s claim of entitlement to service connection for a concussion is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for mild traumatic brain injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for TBI have not been met. 38 U.S.C. §§ 1110, 5107 38 C.F.R. §§ 3.303, 3.304. 4. The criteria for entitlement to service connection for depressive disorder have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for an effective date earlier than June 30, 2014 for the grant of service connection for asbestosis related to pleural disease are not met. 38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R. §§ 3.102, 3.105, 3.156 (c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU was raised by the Veteran’s representative; therefore, the issue is added to the issues on appeal.   Entitlement to service connection for residuals of a stroke The Veteran’s representative contends that the Veteran’s stroke was due to exposure to herbicide agents while he served on a “Blue Water” vessel in the Republic of Vietnam. The Board notes that while a stroke is not a disease presumptively associated with herbicide exposure listed at 39 C.F.R. § 3.309 (e), Note 3, service connection may also be granted for a disease claimed as due to herbicide exposure on a direct service connection basis. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). However, on August 16, 2018, the United States Court of Appeals for the Federal Circuit (Federal Circuit) ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue (service connection for residuals of a stroke) that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. Whether new and material evidence has been received for the claim of entitlement to service connection for a mild TBI. The Board finds new and material evidence sufficient to reopen the Veteran’s claim for mild TBI Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A January 1969 rating decision denied the Veteran’s claim for a concussion because the Veteran failed to report for a VA examination. The Veteran did not appeal and new material evidence was not received within the appellate period; thus, the January 1969 rating decision is final. 38 C.F.R. §§ 20.200. Since January 1968, new evidence has been added to the claims file. New evidence pertinent to this case are two November 2014 VA examinations related to TBI. The November 2014 VA examiners found that the Veteran had a mild TBI in 1966, while the Veteran was in service. The November 2014 VA medical opinions are new and material evidence. The medical opinions are not redundant of past evidence and therefore new. The opinions are material because they go to the unestablished fact of whether the Veteran had a TBI in service. Therefore, the November 2014 medical opinions are new and material evidence. Since the Veteran has provided new and material evidence, reopening this claim is in order. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) Service Connection 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In the absence of proof of a present disability, there is no valid claim for service connection; an appellant’s belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for a mild TBI The Veteran contends that he had residuals due to an in-service concussion. The Veteran’s service treatment records indicate that the Veteran had a concussion in April 1966. The service treatment records note that the Veteran was discharged without evidence of neurological disease and was felt to have sufficiently recovered and able to return to full duty. The Veteran’s post-service service treatment records note that the Veteran had a stroke in 2004. A February 2014 treatment note indicates that the Veteran had memory issues related to the Veteran’s stroke. The Veteran underwent a VA neurological and brain and spinal cord examinations in November 2014. The neurological examiner found that the Veteran’s service treatment records are positive for a TBI. The examiner reasoned that the Veteran had a 1964 diagnosis of cerebral concussion, which is consistent with a mild TBI. The Veteran reported to the examiner that he had positive-concussive symptoms of poor memory and blurry vision for a few days after the event, the examiner noted that this was not documented in the Veteran’s records. The examiner stated that the Veteran’s initial symptoms were reported to have resolved after a few days consistent with the typical course and pattern of a mild TBI recovery. The examiner noted that Veteran had a complaint of memory loss. The examiner stated that Veteran’s memory loss was reported to have its onset following a 2004 stroke unrelated to the Veteran’s in-service concussion. The examiner stated the Veteran’s mild TBI is considered resolved. During the brain and spinal cord examination the Veteran reported ringing in the ears, difficulty reading, memory issues, and headaches a couple times a month on the top of his head. Upon physical examination the examiner found a healthy middle-aged man with nothing abnormal detected. The Veteran was awake and orientated to person, place, and time. The Veteran’s gait was within normal limits. The Veteran’s speech and language were normal. The Veteran’s cranial nerves II-XII were intact. The Veteran’s rapid alternating movements and toe tap were normal. The Veteran’s Romberg test was normal and he had 5/5 strength in all extremities. The examiner found that the TBI is considered to be resolved. The examiner noted that the Veteran did not have any residuals related to his TBI and therefore, did not have any facets of TBI related cognitive impairment or subjective symptoms of TBI. There must be competent evidence that the Veteran currently has a TBI or residuals of a TBI. The record does not include any such evidence. The treatment records associated with the record do not show any diagnosis or treatment for any TBI or residuals. The Veteran’s service treatment records indicate the Veteran had a concussion in April 1964, however, the November 2014 examiners found the mild TBI had resolved itself within a few days of its occurrence. The VA examiners found no residuals of the Veteran’s mild TBI and it was resolved. Accordingly, there is no valid claim of service connection for TBI. Brammer v. Derwinski, 3 Vet. App. 223 (1992). 2. Entitlement to service connection for an acquired psychiatric disorder to include depression and posttraumatic stress disorder (PTSD) The Veteran contends that his acquired psychiatric disorder is related to his service-connected asbestos related pleural disease. In November 2014, the Veteran underwent a brain and spinal cord VA examination. The examiner noted a neurobehavior symptom of a moderate depressed or sad feeling since his stroke in 2004. In September 2016, the Veteran’s private physician, Dr. B., stated that the Veteran’s lung disorder affected his lifestyle. In December 2017, the Veteran’s private treatment records indicate a diagnosis of recurrent depressive disorder. The Veteran was referred for behavioral health of an adult. In November 2017, the Veteran’s daughter stated she witnessed changes in the Veteran. The Veteran’s daughter stated that the Veteran had a lung condition which did not allow him to perform many day-to-day tasks. She stated that the Veteran’s inability to participate in everyday life took a toll on his mind. She stated that the Veteran was depressed and became more isolated from his friends and family. In December 2017, the Veteran’s son stated that the Veteran’s constant worrying about his lung disease was deteriorating his emotional and mental state of mind. The Veteran’s son stated that he and his sister were concerned about the Veteran’s emotional and mental health because he no longer feeling excited about life like he used to be. In January 2018, the Veteran provided a private medical opinion. The private physician, Dr. H., stated that the Veteran had a clear diagnosis of recurrent depressive disorder. Dr. H. opined that the Veteran’s depressive disorder is more likely than not caused by the limitations and impact of the Veteran’s service-connected asbestosis and pleural disease. Dr. H. based his opinion on the evidence of Dr. B.’s opinion that that the Veteran’s lung disorder impacted the Veteran’s daily life. Dr. H., also notes that the Veteran’s children identified symptoms the Veteran had due to his lung disorder are commonly associated with depression. Finally, Dr. H. cited the National Heart, Lung, and Blood institute that found people with lung conditions do experience depression. The Board finds that the Veteran has a current diagnosis of depressive disorder. The Board finds relative equipoise that the Veteran’s depressive disorder was caused by the Veteran’s service-connected lung disorder. The evidence in the record indicate that the Veteran’s depression symptoms began following his stroke in 2004, however the Veteran’s private physician opined that depressive disorder was caused by his lung disorder. Therefore, providing the Veteran the benefit of the doubt, the Veteran’s depressive disorder is proximately due to the Veteran’s service-connected lung disorder; and thus, service connection is granted. In April 2017, the Veteran’s representative implied that the Veteran had PTSD. However, the record does not contain any evidence that the Veteran had a diagnosis of PTSD. Further, the Veteran’s private physician diagnosed the Veteran with depressive disorder and did not find a diagnosis of PTSD. Therefore, service connection for PTSD is not warranted. Finally, the Board notes that Veteran’s service treatment records do not indicate any treatment or diagnosis for a psychiatric disorder in service. The Veteran indicated that he experienced a traumatic event while in service. However, there is no evidence of a nexus between the Veteran’s service and Veteran’s depressive disorder. Thus, direct service connection is not warranted. 3. Entitlement to an earlier effective date prior to June 30, 2014 for a grant of service connect and award of 30 percent rating for asbestosis related to pleural disease due to exposure to asbestos. The Veteran contends that his asbestosis related to pleural disease should have an effective date prior to June 30, 2014. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 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). With respect to claims to reopen, the effective date for an award of benefits will be the date of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the appellant’s claim was received by VA prior to that date, the former regulations apply and are applicable to his case. Previously, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the 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 the receipt of the informal claim. 38 C.F.R. § 3.155 (a). Thus, 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). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the record indicates that the only claim formal or informal related to the Veteran’s asbestosis was received on June 30, 2014. The Veteran was granted service connection for asbestosis related to pleural disease effective June 30, 2014. The Board is bound by the specific legal standard governing effective dates. Because there is no legal basis by which an effective date for the grant of service connection and therefore the 30 percent disability evaluation for asbestosis related to pleural disease earlier than June 30, 2014 can be granted, the petition for an earlier effective date must be denied. See 38 C.F.R. § 3.400 (b)(2)(i). As a preponderance of the evidence is against entitlement to earlier an effective date, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is related to service. As noted above, the Veteran is currently service-connected for asbestosis related to pleural disease. The Veteran was diagnosed with obstructive sleep apnea in May 2014. The Veteran’s private treatment records imply a connection between the Veteran’s service-connected asbestosis related to pleural disease and his sleep apnea. The Veteran has not undergone a VA examination concerning his sleep apnea. Therefore, the Board find that the duty to assist requires that the Veteran undergo a VA examination to determine the etiology of the Veteran’s sleep apnea. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to an initial disability rating in excess of 30 percent for service-connected asbestosis related to pleural disease due to exposure to asbestos The Veteran contends that his asbestosis related to pleural disease has worsened. In January 2018, Dr. H. opined that the Veteran’s asbestosis related pleural disease has worsened based upon the Veteran’s July 2017 lung capacity tests. The Veteran’s July 2017 lung capacity tests do not include a post-bronchodilation assessment. For rating purposes, post-bronchodilator findings are the standard in pulmonary assessment. 61 Fed. Reg. 46,723 (VA assesses pulmonary function after bronchodilation). Post-bronchodilator studies are required, and will be used for rating purposes, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or when the examiner determines that post-bronchodilator results should not be used and states why. 38 C.F.R. §§ 4.96 (d)(4), (5). As evidence suggests that the Veteran’s asbestosis related pleural disease has worsened since his January 2015 VA respiratory examination and the record does not contain an updated pulmonary assessment which includes post-bronchodilator studies a VA examination is required. The Board notes that in September 2016, Dr. B stated that the Veteran used oxygen to help the Veteran breath and sleep better, as well as to maintain a normal oxygen saturation. Upon examination, the examiner must provide an opinion as to whether the Veteran require outpatient oxygen therapy. 3. Entitlement to a TDIU Because a decision on the entitlement to a disability rating in excess of 30 percent for asbestosis related to pleural disease and herein granted service-connected depressive disorder could significantly impact a decision on the issue entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Request that the Veteran fill out a current formal TDIU application form (VA Form 21-8940). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea. The examiner must opine as to the following: (a.) Whether the Veteran’s sleep apnea is at least as likely as not related to an in-service injury, event, or disease, including exposure to asbestos. (b.) Whether the Veteran’s sleep apnea is at least as likely as not (1) proximately due to the Veteran’s asbestosis related to pleural disease, or (2) aggravated beyond its natural progression by the asbestosis related to pleural disease. (c.) A compete rationale for any expressed opinion should be provided by the examiner. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected asbestosis related to pleural disease. 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 include post-bronchodilator studies. The examiner must opine as to whether it is at least as likely as not the Veteran requires outpatient oxygen therapy. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to asbestosis related to pleural disease alone and discuss the effect of the Veteran’s lung disorder on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel