Citation Nr: 18149093 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-05 873 DATE: November 8, 2018 ORDER Entitlement to service connection for diabetes is denied. Entitlement to an initial rating in excess of 50 percent for sleep apnea is denied. Entitlement to an initial compensable rating for hypertension is denied. Entitlement to an initial effective date for hypertension prior to April 16, 2011 is denied. Entitlement to an initial effective date for sleep apnea prior to April 16, 2011 is denied. Entitlement to total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s diabetes did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. Since the award of service connection, the Veteran’s sleep apnea was not productive of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or required tracheostomy. 3. Since the award of service connection, the Veteran’s hypertension was not productive of diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more; or a history of diastolic pressure of 100 more that required continuous medication for control. 4. The record contains no informal claim, formal claim, or any written intent to file a claim to reopen his previously denied claim for entitlement to service connection for hypertension after the final June 2010 rating decision and prior to April 16, 2011 claim. 5. The record contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for sleep apnea prior to April 16, 2011. 6. The Veteran’s service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for an initial disability rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6847. 3. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, DC 7101. 4. The criteria for an effective date earlier than April 16, 2011, for the award of service connection for hypertension, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.159, 3.400. 5. The criteria for an effective date earlier than April 16, 2011, for the award of service connection for sleep apnea, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.159, 3.400. 6. The criteria for TDIU have been met. 38 U.S.C. §§ 5110 (a), 5107(b); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to March 2004 and from January 2006 to March 2010. The Veteran also had a period of Active Duty for Training (ACDUTRA) from January 1999 to April 1999. With respect to the claim for TDIU, in March 2016, additional evidence was submitted by the Veteran’s representative along with a waiver of Agency of Original Jurisdiction (AOJ) consideration of such evidence. Review of the record appears to show that the Veteran filed his claims for service connection for sleep apnea and hypertension on April 16, 2012. However, for unclear reasons, the RO assigned an April 16, 2011 effective date with respect to the issues on appeal. Regardless, as this date is more beneficial to the Veteran, the Board will consider this date as the date of claim and determine whether earlier effective dates are warranted. REFERRED The issue of entitlement to an increased rating for tensions headaches was raised in a March 2016 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for diabetes The Veteran contends that his diabetes is the result of his active service Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has diabetes mellitus, type II, which is a chronic disease under 38 U.S.C. § 1101(3), 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. In this regard, service treatment records are silent for any treatment or diagnosis of diabetes for the Veteran. Moreover, in April 2010, approximately one month after the Veteran separated from active service, he attended a VA general medical examination. The examiner was silent with respect to any findings of diabetes. The first instance in the record of a diagnosis or treatment for diabetes is a June 2011 VA treatment note indicating an assessment of diabetes. Although the Veteran indicates that his diabetes manifested within one year of discharge, the evidence of record does not support this contention. Indeed, the earliest instance of treatment or diagnosis of diabetes occurred approximately 18 months after discharge, outside of the presumptive period to warrant service connection. In sum, the Veteran was not diagnosed with diabetes mellitus until over one year after his separation from service and outside of the applicable presumptive period. Moreover, there is no competent or credible evidence of pertinent symptomatology since service. Although asserting he was diagnosed within one year, the Veteran himself has not described any pertinent symptoms. In a February 2016 VA medical opinion, the examiner opined that the Veteran did not have a diagnosis of diabetes within one year of discharge. The examiner rationalized that after reviewing “service treatment records, CAPRI, and other records and cannot find any evidence to indicate that the Veteran had [diabetes] within 1 year of discharge.” Service connection for diabetes mellitus, type II, may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s diabetes and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, service treatment records are completely silent with respect to any findings of diabetes. Moreover, the Veteran himself has not described an in-service injury, event or disease that caused his current disorders. In sum, there is simply no competent evidence showing that the Veteran suffered an in-service incident. Further, there is no medical or lay evidence linking any current disability to service. Again, the February 2016 VA examiner found that the condition was less likely than no incurred in or caused by the claimed in-service, injury, event or illness and offered a rationale for this opinion. The Veteran has expressed his opinion that the current diagnosis is related to military service, but he is simply not competent to render such an opinion. He lacks the specialized knowledge and training needed to reason and draw conclusions based on medical evidence. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, given the lack of any in-service injury, event or disease, or any evidence linking such disorders to service, service connection must be denied. In conclusion, the Board finds that the preponderance of evidence is against the Veteran’s claims for service connection diabetes mellitus. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to an initial rating in excess of 50 percent disabling for sleep apnea The Veteran contends that his sleep apnea warrants a higher initial rating. The Veteran’s sleep apnea is rated under 38 C.F.R. § 4.97, DC 6847. Under DC 6847, a 50 percent rating is assigned when the sleep apnea requires the use of a breathing assistance device such as CPAP. A 100 percent rating is assigned for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. In September 2012, the Veteran attended a VA Sleep Apnea DBQ examination. The examiner diagnosed obstructive sleep apnea. Upon examination, it was noted that the Veteran required the use of a CPAP machine. There was no evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or required tracheostomy. Various VA treatment records indicate an assessment of obstructive sleep apnea and subsequent CPAP treatment, but do not show chronic respiratory failure with carbon dioxide retention, cor pulmonale, or required tracheostomy. Based on the foregoing evidence of record, the Board finds that an initial rating in excess of 50 percent disabling rating since the award of service connection is not warranted. In this regard, there is no indication in the record that the Veteran suffered from chronic respiratory failure with carbon dioxide retention, cor pulmonale, or required tracheostomy, indicative of a higher 100 percent rating. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an initial compensable rating for hypertension. The Veteran contends that his hypertension warrants a higher initial rating. The Veteran’s hypertension is rated under the rating schedule for the cardiovascular system, 38 C.F.R. § 4.104, DC 7101. A compensable, 10 percent rating requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. For a 20 percent rating, the evidence must show diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. Id. Any higher rating requires higher diastolic pressure readings. Id. In September 2012, the Veteran attended a VA Hypertension DBQ examination. The examiner diagnosed hypertension. Upon examination, it was noted the Veteran does not have a history of a diastolic BP elevation to predominantly 100 or more, nor was there systolic pressure predominantly 160 or more noted upon examination. VA treatment records are also silent with respect to any blood pressure readings with diastolic BP elevation to predominantly 100 or more or systolic pressure predominantly 160 or more. Based on the foregoing evidence of record, the Board finds that an initial compensable rating is not warranted since the award of service connection. Importantly, there is no indication in the record that the Veteran suffered diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, indicative of a compensable rating. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. As a general proposition, the law regarding the effective date of an award of service connection benefits is well-understood. The effective date of an award of benefits based on an original claim cannot be earlier than the date that the VA received the claim. See 38 U.S.C. § 5110(a); Adams v. Shinseki, 568 F.3d 956, 960(Fed. Cir. 2009). The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Effective March 24, 2015, VA amended its regulations to require all claims 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. In effect prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA 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). Entitlement to an initial effective date for hypertension and sleep apnea prior to April 16, 2011. The Veteran generally contends that he is entitled to an earlier effective date for service connection for hypertension and sleep apnea prior to April 16, 2011. The Veteran separated from service in March 2010. The Veteran initially filed a claim for service connection for hypertension that same month. This claim was denied by the RO in a June 2010 rating decision. The Veteran did not initiate an appeal from this decision and new and material evidence was not received within one year. In this regard, it does not appear that the Veteran received any treatment for his disorder at the VA within one year. Moreover, importantly, the Veteran did not notify VA that additional VA treatment records were in existence. See Turner v. Shulkin, No. 16-1171 (Vet. App. Feb. 8, 2018). Under these circumstances, the June 2010 decision became final. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, while the finality of the June 2010 decision could also be vitiated by a finding of clear and unmistakable (CUE) in that decision (see Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates), no such claim has been raised here. The Veteran did not submit a claim of entitlement to service connection for sleep apnea within one year of service discharge. Therefore, assignment of an effective date back to the day following his service discharge is not warranted. On April 16, 2011, the Veteran filed an informal claim seeking to reopen his claim for high blood pressure as well as entitlement to service connection for sleep apnea. In an August 2013 rating decision, the RO granted service connection for hypertension and assigned a noncompensable rating, effective April 16, 2011, the date of claim to reopen. The RO also granted service connection for sleep apnea with a 50 percent rating, effective April 16, 2011. The Board has considered whether any evidence of record prior to April 16, 2011, could serve as an informal claim in order to entitle the Veteran to an earlier effective date for hypertension and/or sleep apnea. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran indicates an attempt to apply for service connection for hypertension and/or sleep apnea. However, no document submitted prior to April 16, 2011 indicates intent to pursue a claim of entitlement to service connection for hypertension and/or sleep apnea. It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. The provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Although some of the Veteran’s VA treatment records document assessments of hypertension and sleep apnea, such medical records cannot constitute an initial claim for service connection as no intent to file a claim was noted. See Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon, supra (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). After reviewing the evidence, the Board finds that the RO did not receive an application for compensation benefits prior to the receipt of the Veteran’s claim in April 2011. The effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to April 16, 2011, for the grant of service connection for hypertension or sleep apnea. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to April 16, 2011 for the award of service connection for such disabilities. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Entitlement to TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran contends that his service-connected disabilities prevent him from maintaining gainful employment. In April 2014, the Veteran was sent a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. To date, this form has not been returned to VA. As of March 28, 2010, the Veteran has met the schedular requirements for TDIU. From that date, the Veteran was service-connected for posttraumatic stress disorder (PTSD), at 50 percent disabling; irritable bowel syndrome (IBS), at 30 percent disabling; tinnitus at 10 percent disabling; tension headaches at 10 percent disabling; residuals, right ankle fracture, at 10 percent disabling; and gastroesophageal reflux disease (GERD), at 10 percent disabling. The Veteran’s combined rating was 80 percent. The May 2010 VA examination observed that the Veteran’s service-connected IBS and GERD had a moderate effect on the Veteran’s occupation. Importantly, a May 2010 VA psychiatric examination showed that the Veteran demonstrated problems maintaining a job because he had difficulty being around people and was easily agitated. His memory and concentration problems also hindered his work. The examiner concluded that PTSD symptoms were severe enough to interfere with occupational functioning. In his September 2012 VA Sleep Apnea and Hypertension DBQ examinations, both examiners indicated that neither condition impacted the Veteran’s ability to work. In April 2014, Social Security Administration (SSA) records were obtained. These records indicate that SSA found the Veteran was too disabled to work from March 1, 2013 because of anxiety related disorders and essential hypertension. Notably, these records indicate that upon examination, the Veteran had a “profile history” of symptoms consistent with PTSD. Further, it indicated that the Veteran’s impairments were severe, but did not restrict all daily functioning activities prior to March 1, 2013 and did not show any other condition which would have significantly limited his ability to work. Moreover, importantly, a February 2016 private opinion noted that the Veteran experienced limitations such as limited standing, walking, decreased concentration, pain and the need for several unscheduled breaks daily caused by excessive daytime sleepiness precluded the Veteran from obtaining and/or maintaining gainful employment. Based on the foregoing, and giving the benefit of the doubt to the Veteran, the Board finds that entitlement to TDIU is warranted. The Board notes that the Veteran SSA disability determination was made based on the Veteran’s anxiety related disorder, which appears directly related to the Veteran’s service-connected PTSD, and hypertension, for which the Veteran is currently service-connected. While the Board notes that SSA disability determinations are not controlling on the Board, they are considered probative evidence. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating that SSA’s favorable determination, while probative evidence to be considered in a claim for VA benefits, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements); see also White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001) (discussing differences between SSA’s criteria and VA’s criteria for determining disability). Moreover, the February 2016 private examiner clearly outlined the functional impairment caused by the Veteran’s service-connected disabilities and determined that such precluded him from obtaining and/or maintaining gainful employment. For the above reasons, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude employment. Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 1507; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel