Citation Nr: 18148588 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-27 415A DATE: November 7, 2018 ORDER Entitlement to an effective date for the grant of service connection for degenerative disc disease of the thoracolumbar spine earlier than September 22, 2011, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the thoracolumbar spine is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran first filed an informal claim for service connection for a back disorder on September 22, 2011. There is no earlier record that constitutes a formal or informal claim. CONCLUSION OF LAW The criteria for an effective date prior to September 22, 2011, for the grant of service connection for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 2004 to December 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the effective date issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Unless specifically provided otherwise, 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 therefor. 38 U.S.C. § 5110(a) (2012). The effective date for an award of 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, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400 (b)(2). 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 implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under 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 a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an effective date earlier than September 22, 2011, for the grant of service connection for degenerative disc disease of the thoracolumbar spine. The Veteran first contacted VA on September 22, 2011, indicating that he wanted to file a claim for service connection for a back disorder. VA later received a VA Form 21-526 on April 9, 2012, claiming service connection for a low back injury. The claims file does not contain any earlier communication or statement from the Veteran. There is no indication that the Veteran filed a claim for service connection within one year of his separation from service. As such, the date of the Veteran’s separation from service cannot be used as the basis for an effective date. 38 C.F.R. § 3.400(b)(2). Although the disability may have manifested prior to September 22, 2011, the law provides that the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). Because the claim was first received by VA on September 22, 2011, an earlier effective date is not warranted for the grant of service connection. REASONS FOR REMAND Initially, the Board notes that a DD Form 214 indicates that the Veteran served on active duty from December 2004 to December 2005 and had 1 year, 8 months, and 22 days of prior active service. As a prior period of service has not been verified, the Agency of Original Jurisdiction (AOJ) should attempt to verify any earlier period of active service and any additional service records. Sleep Apnea The Board notes that the Veteran’s service treatment records are negative for any complaints, diagnosis or treatment for sleep apnea. The first reference in the post-service medical records to sleep apnea was in July 2010, when the Veteran complained that he wakes frequently during the night and does not feel rested. According to the Veteran, his wife told him that he snores loudly and gasps for air. See July 2010 VA treatment records. Following sleep studies in August 2010 and October 2010, he was diagnosed with obstructive sleep apnea (OSA) and prescribed a CPAP device. According to the Veteran, prior to being deployed to Afghanistan in May 2005, he rarely snored. In January 2006, after returning home, his wife complained about his snoring and loud gasping for air. She eventually moved to another room at night. See April 2012 lay statement. He alleges that, during his deployment, he was exposed to toxic fumes from burn pits on a weekly basis and cites research articles regarding the purported connection between burn pits and OSA. The Veteran’s wife, K.R. (initials used to protect privacy), submitted an April 2012 lay statement in support of the Veteran’s claim, stating that they have been married since August 1996 and that he rarely snored; however, after his return from a deployment, he snored all the time. She noted that he also gasped for air as though he had momentarily stopped breathing. She indicated that she urged him to see a doctor, but he refused until 2010. R.G. also submitted an April 2012 lay statement on the Veteran’s behalf, explaining that they served in the 94th Aerial Port Squadron for many years and roomed together on numerous occasions. He indicated that the Veteran was never a snorer to his recollection. However, after the deployment, he noted that the Veteran snored loudly and gasped for air, as though he was choking. R.G. has also been diagnosed with OSA and recognized the symptoms. The Veteran was afforded a VA examination in August 2013 in connection with his claim. The VA examiner determined that his obstructive sleep apnea (OSA) was less likely than not related to military service, including any exposure to burn pits in Afghanistan. She explained that he did not report snoring in service and was not diagnosed with OSA until 2010, which was five years after active duty service. There is also no evidence that he went to sick call for exposure to burn pits, and the medical literature does not support exposure to burn pits as a cause of OSA. Rather, she explained that OSA is caused by relaxation of the muscles in the back of the throat closing the airway. Nevertheless, the August 2013 VA examiner did not specifically discuss the lay statements submitted by the Veteran, his wife, and R.G. Nor did she address the medical research studies submitted by the Veteran in support of his allegation that toxic fumes from the burn pits could have caused or worsened his OSA. The Veteran did submit an August 2017 private disability benefits questionnaire (DBQ) by Dr. H.S. According to Dr. H.S., his OSA as likely as not began during active service. Dr. H.S. relied on the Veteran’s description of his symptoms and explained that most people who have OSA are not accurately diagnosed for some time. Dr. H.S. also stated that psychiatric disorders are commonly associated with OSA and indicated the Veteran’s anxiety disorder as likely as not aided in the development of his OSA and permanently aggravated his OSA; however, the Board observes that the Veteran is not currently service-connected for a psychiatric disorder. Based on the foregoing, the Board finds that an additional medical opinion is needed to address the lay statements submitted in support of the Veteran’s claim, the research studies submitted by the Veteran regarding an alleged link between OSA and exposure to toxic fumes from burn pits in Afghanistan, and the conflicting opinions. Degenerative Disc Disease of the Thoracolumbar Spine The Veteran was afforded a VA examination in August 2013 in connection with his claim. However, the report does not comply with the requirements of Correia v. McDonald, 25 Vet. App. 158 (2016) (holding that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing). Therefore, the Board finds that an additional VA examination is needed. Headaches The Board notes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for headaches. The Veteran has submitted an August 2017 DBQ from Dr. H.S. in which he was diagnosed with tension headaches. Dr. H.S. stated that patients with mental health conditions are more likely to develop headaches because pain and mood are regulated by the same part of the brain. Dr. H.S. then opined that it is as likely as not that the Veteran’s anxiety disorder aided in the development of, and permanently aggravated, his tension headaches. However, the Veteran is not currently service-connected for any psychiatric disorder, and Dr. H.S. did not directly relate the Veteran’s tension headaches to his military service or his service-connected disability. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any headaches that may be present. Acquired Psychiatric Disorder The RO has denied the claim for service connection for an acquired psychiatric disorder on the basis that there was no current diagnosis. In addition, the available service treatment records were negative for complaints, diagnosis or treatment of a psychiatric disorder. He was not afforded a VA examination in connection with the claim. The Veteran has submitted an April 2017 lay statement from his mother, J.R., in which she indicated that he had no mental health issues prior to being deployed to Afghanistan. She noted that, when he returned, the Veteran was anxious, impatient, and easily irritated. J.R. stated that the Veteran lashes out verbally and indicated that his mental state is worsening. In addition, the Veteran has submitted a June 2017 DBQ and medical opinion from H.H.-G., Ph.D., a psychologist. Dr. H.H.-G. diagnosed the Veteran with an unspecified anxiety disorder. According to Dr. H.H.-G., his unspecified anxiety disorder more likely than not began in military service, continues uninterrupted to the present, and is aggravated by his service-connected degenerative disc disease of the thoracolumbar spine. This was first assertion of secondary service connection. The Board finds that a VA examination and medical opinion are necessary to address the nature and etiology of any acquired psychiatric disorder that may be present. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sleep apnea, headaches, degenerative disc disease of the thoracolumbar spine, and a psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. The AOJ should attempt to verify any earlier period of active service. A DD Form 214 indicates that the Veteran served in the United States Air Force Reserve, had a period of active duty from December 2004 to December 2005 and had 1 year, 8 months, and 22 days of prior active service. The prior period of service has not been verified. The AOJ should also attempt to secure the Veteran’s complete service personnel and treatment records for his period of active duty from December 2004 to December 2005, as well as any additional service (including his Reserve service). 3. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a medical opinion as to the nature of any current sleep apnea. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran’s sleep apnea manifested in service or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology and environmental hazards therein. See e.g. April 2012 statement and medical research articles (alleging sleep apnea caused by exposure to burn pits in Afghanistan). In rendering this opinion, he or she should consider the lay statements attesting to his symptomatology during and after his deployment. The examiner should also opine as to whether it is at least as likely as not that the Veteran has sleep apnea that is either caused by or aggravated by a psychiatric disorder (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected degenerative disc disease of the thoracolumbar spine. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the thoracolumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also comment on whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify all neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examination conducted during the appeal period in August 2013. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current psychiatric disorders. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current acquired psychiatric disorder that is causally or etiologically related to his military service, to include any symptomatology therein. The examiner should also state whether it is at least as likely as not that the disorder was either caused by or aggravated by any acquired psychiatric disorder and/or the Veteran’s service-connected degenerative disc disease of the thoracolumbar spine. In rendering his or her opinion, the examiner should consider the June 2017 DBQ and mental health assessment by Dr. H.H.-G. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After the above development has been completed, the Veteran should be afforded a VA examination to the nature and etiology of any headache disorder that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including any available personnel records, post-service medical records, and lay statements and assertions. The examiner should specifically consider the findings in Dr. H.S.’s August 2017 DBQ. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has headaches that manifested in or are otherwise related to his military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran’s headaches were either caused by or permanently aggravated by an acquired psychiatric disorder and/or the Veteran’s service-connected degenerative disc disease of the thoracolumbar spine. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If a report is deficient in any manner, the AOJ should implement corrective procedures. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel