Citation Nr: 18150228 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-40 379 DATE: November 14, 2018 ORDER 1. The reduction in the Veteran’s disability rating for the service-connected traumatic and degenerative arthritis of the right ankle joint with a ligament injury (right ankle disability) from 30 percent to 10 percent, effective April 18, 2014, was improper; the claim for restoration is granted. 2. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The Regional Office (RO) issued a June 2014 rating decision, which reduced the disability rating for the Veteran’s service-connected right ankle disability from 30 percent to 10 percent, effective April 18, 2014. 2. The June 2014 rating decision also found a clear and unmistakable error (CUE) in a January 10, 2013, rating decision, which assigned a 100 percent disability rating for the Veteran’s severe posttraumatic stress disorder (PTSD) and major depressive disorder, but did not grant entitlement to special monthly compensation (SMC) on the basis of being housebound even though the Veteran had in addition to a single, permanent service-connected disability rated as 100 percent disabling, additional service-connected disabilities independently ratable at 60 percent disabling. 3. After affording the Veteran the benefit of the doubt, the evidence does not show that prior to the June 2014 rating decision, the RO provided the Veteran with a rating proposing the reduction of the disability rating for the right ankle disability; informed him that he had 60 days to present additional evidence to show that compensation payments should be continued at their present level and that he may request a predetermination hearing; and, the June 2014 rating decision did not reduce the rating for the right ankle disability effective the last day of the month in which the 60-day period from the date of notice to the Veteran expired. 4. The Veteran did not incur an event, injury, or disease related to his current sleep apnea during active duty service, and such a disorder is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for the reduction in the Veteran’s disability rating for service-connected right ankle disability from 30 percent to 10 percent have not been met as of April 18, 2014. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.44, 3.105(e), (i), 4.71a, Diagnostic Code (DC) 5299-5262 (2017). 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1981 to June 1985. VA’s duty to assist includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not been provided with a VA examination for his service connection claim for sleep apnea. However, as explained below, the Board finds that there was no event, injury, or disease related to the Veteran’s current sleep apnea that occurred in service, which is one of the criteria needed for entitlement to a VA examination. McLendon, 20 Vet. App. at 81; see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). VA, therefore, has no duty to provide a medical examination for this claim. 1. Reduction of the Disability Rating for the Right Ankle Disability The Veteran contends that the disability rating for his right ankle disability should not have been reduced from 30 percent disabling to 10 percent disabling, effective April 18, 2014. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In many rating reduction cases, the Agency of Original Jurisdiction (AOJ) must first comply with several specific procedures described in 38 C.F.R. § 3.105(e). The Board notes that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance and setting forth all material facts and reasons must be prepared. A veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and, will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. A veteran must also be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. See 38 C.F.R. § 3.105(e). The record shows that the RO issued a June 2014 rating decision, which reduced the disability rating for the Veteran’s service-connected right ankle disability from 30 percent to 10 percent, effective April 18, 2014. At the time that this rating decision was issued, service-connection was in effect for other disabilities. The Veteran’s severe PTSD and major depressive disorder was rated as 100 percent disabling, mild traumatic brain injury (TBI) was rated as 40 percent disabling, and tinnitus was rated as 10 percent disabling. Additionally, the Veteran’s service-connected tympanic membrane perforation, bilateral ear hearing loss, and erectile dysfunction (ED) were rated as noncompensable (zero percent). Although the record shows that the RO proposed to reduce the disability rating for the Veteran’s right ankle disability from 30 percent to 10 percent in an April 2014 rating decision following an April 18, 2014, VA examination of the right ankle, the claims file does not contain evidence showing that this proposed rating decision was sent to the Veteran’s latest address of record at that time. Furthermore, the claims file does not contain evidence showing that the AOJ sent the Veteran a letter informing him that he had 60 days to present additional evidence to show that compensation payments should be continued at their present level and that he may request a predetermination hearing. In fact, a July 2014 Report of General Information shows that the Veteran told VA staff personnel that he did not receive notification or a copy of the April 2014 rating decision proposing to reduce the disability rating for the right ankle disability. Nonetheless, the RO issued a June 2014 rating decision effectuating the reduction in the disability rating from 30 percent disabling to 10 percent disabling for the right ankle, effective April 18, 2014, which was the date of the VA examination for the right ankle. Essentially, the RO assigned this effective date because that was the date that the facts established that the Veteran’s right ankle disability did not meet the criteria for a 30 percent evaluation and because his service-connected disabilities, in combination, continued to render him 100 percent disabled the date of the reduction; thus, the notice provisions of 38 C.F.R. § 3.105(e) did not apply to the reduction for the right ankle disability. However, the June 2014 rating decision also found a CUE in a January 10, 2013, rating decision, which assigned a 100 percent disability rating for the Veteran’s severe PTSD and major depressive disorder, but did not grant entitlement to SMC on the basis of being housebound even though the Veteran had in addition to a single, permanent service-connected disability rated as 100 percent disabling, additional service-connected disabilities independently ratable at 60 percent disabling. See 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). Therefore, the June 2014 rating decision granted entitlement to SMC based on housebound criteria from November 23, 2011, to April 30, 2014, and the Veteran received retroactive monetary benefits for that time period. In the June 2014 rating decision, the RO determined that the Veteran did not meet the criteria for entitlement to SMC based on housebound criteria after April 30, 2014, because following the reduction of the Veteran’s disability rating for the right ankle disability on April 18, 2014, he did not have service-connected disabilities independently ratable at 60 percent disabling in addition to the 100 percent disability rating for severe PTSD and major depressive disorder. See 38 C.F.R. § 4.25 (2017). The Board determines that the specific procedures and requirements described in 38 C.F.R. § 3.105(e), including informing the Veteran that he had had 60 days to present additional evidence and that he was entitled to ask for a predetermination hearing, as well as assigning the effective date of the reduction after the last day of the month in which the 60-day period from the date of notice ot the Veteran expired, apply to the Veteran’s case because the lower evaluation of 10 percent for the right ankle disability resulted in a reduction or discontinuance of compensation payments being made at the time the June 2014 rating decision was issued. Specifically, although the Veteran received a retroactive payment due to the June 2014 rating decision that determined there was a CUE in the January 2013 rating decision, the reduction of the right ankle disability rating resulted in a reduction or discontinuance of compensation payments in the form of SMC benefits following April 30, 2014. According to 38 C.F.R. § 3.105(a), where the evidence establishes CUE, the prior decision will be reversed or amended. A rating, or other adjudicative decision that constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a). Because entitlement to SMC for housebound criteria should have been in effect at the time the June 2014 rating decision was issued, the reduction from 30 percent to 10 percent disabling for the right ankle disability resulted in reduction of compensation benefits because the Veteran no longer met the criteria for entitlement to SMC. Thus, the RO was required to comply with the specific provisions described in 38 C.F.R. § 3.105(e), which it failed to do. When a disability rating is reduced by the AOJ without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Thus, after affording the Veteran the benefit of the doubt, the reduction in the disability rating for the right ankle disability from 30 percent to 10 percent, effective April 18, 2014, was improper, and the 30 percent disability rating is restored, effective April 18, 2014. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 49. Additionally, the Board’s decision automatically entitles the Veteran to entitlement to SMC based on housebound criteria being met since May 1, 2014. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 2. Service Connection for Sleep Apnea The Veteran contends that his current sleep apnea disorder was caused by his active duty service and/or caused or aggravated by his service-connected PTSD and major depressive disorder and/or TBI. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Initially, the Board notes that the Veteran has been diagnosed with sleep apnea during the appeal period. For example, a May 2009 VA ambulatory sleep study report showed that the Veteran was diagnosed with sleep apnea and was told to use a continuous positive airway pressure (CPAP) machine. Numerous VA treatment records since that time, including during the appeal period, show that the Veteran has continued to be treated for sleep apnea symptoms. Thus, the first element of direct and secondary service connection is met. Regarding the second element of direct service connection, namely, an in-service incurrence or aggravation of a disease or injury, the Board notes that the Veteran’s service treatment records do not show any complaints of or treatment for sleep apnea in service. Specifically, the Veteran’s service reports of medical examination and history, including from his June 1985 service separation evaluation, do not show any sleep apnea diagnoses or complaints and the Veteran denied having any frequent trouble sleeping during the June 1985 evaluation. Overall, the record shows that the Veteran was first diagnosed with and treated for sleep apnea following a sleep study in May 2009, or approximately 24 years following separation from active duty service. Additionally, while the Veteran stated in a September 2012 written statement and his August 2016 substantive appeal to the Board (VA Form 9) that he has had sleep problems since service and that his sleep apnea began after he was injured in an explosion in Beirut, Lebanon, in October 1983, he stated in February 2013 that his sleep apnea symptoms are not related to his active duty service. In fact, he asserted that he never contended that his sleep apnea was caused by or related to his active duty service. Rather, he contended that his chronic sleep problems and symptoms, including insomnia, daytime tiredness, and hypervigilance, were related to the in-service explosion in Beirut. Given this evidence, the Board finds that the Veteran did not incur an event, injury, or disease related to his current sleep apnea during active duty service. In fact, as he expressly noted in February 2013, the Veteran does not contend that his current sleep apnea is caused by any incident of his active duty service. Rather, he contends that this disorder is caused or aggravated by his service-connected PTSD and major depressive disorder and TBI disabilities. He made such assertions in an August 2013 statement and multiple other statements throughout the appeal. While many VA treatment records for the Veteran’s psychiatric disabilities of PTSD and major depressive disorder, as well as TBI, including VA examination reports from March 2012 and April 2012, show that he has nightmares, distorted nightly sleep, chronic sleep impairment and disturbance, difficulty falling or staying asleep, and daily fatigue, the record shows that these symptoms have been rated under the Veteran’s service-connected PTSD, major depressive disorder, and TBI disabilities. However, apart from the Veteran’s statements, the evidence in the claims file, including the medical evidence of record, does not show that his sleep apnea disorder is caused or aggravated by his service-connected disabilities, including PTSD and major depressive disorder and/or TBI. The Board acknowledges the Veteran’s contentions that his sleep apnea was caused or aggravated by his service-connected disabilities, and notes that he is competent to report symptoms that he perceived through his own senses. However, he is not competent to offer an opinion as to the cause of his sleep apnea due to the medical complexity of the matter involved. Sleep apnea requires specialized training for a determination as to diagnosis, causation, and progression, and is therefore not susceptible to lay opinions on diagnosis, causation, or aggravation. Thus, the Veteran is not competent to render opinions or attempt to present lay assertions to establish the cause of this disorder. Overall, the preponderance of the evidence is against a finding that the Veteran’s current sleep apnea disorder is caused or aggravated by his service-connected PTSD and major depressive disorder and/or TBI disabilities. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel