Citation Nr: 18154719 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-22 029 DATE: December 4, 2018 ORDER Entitlement to an effective date earlier than May 24, 2016 for the award of a 50 percent rating for depressive disorder is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 50 percent prior to July 25, 2018 and in excess of 70 percent thereafter for major depressive disorder is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for compensation for depressive disorder on May 24, 2016, and the record contains no statement, communication, or other information from the Veteran prior to this date that can reasonably be construed as constituting a claim of entitlement to an increased rating for major depressive disorder. 2. It is not factually ascertainable that the increase in the Veteran's depressive disorder occurred within the one-year period preceding his filing of the increased rating claim on May 24, 2016. CONCLUSIONS OF LAW The criteria for an effective date earlier than May 24, 2016, for the award of a 50 percent rating for depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. §§ 3.102, 3.400, 4.71a, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. New evidence in the form of VA treatment records was added to the claims file following the July 2017 statement of the case and prior to the March 2018 transfer of the case to the Board. This evidence is duplicative. Thus, remand for consideration by the agency of original jurisdiction is not required. The Board acknowledges that the Veteran submitted a RAMP opt-in election form in March 2018. The issues addressed herein were activated prior to receipt of the opt-in election form, meaning that these issues are not eligible for the RAMP program, and the Board retains jurisdiction. Effective Date The Veteran contends that he is entitled to an effective date earlier than May 24, 2016 for the award of a 50 percent rating for the service-connected depressive disorder. The effective date of an award of increased compensation to a Veteran shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year of such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date is the date of receipt of claim. 38 U.S.C. § 5110 (b)(2); 3.400(o)(2). Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined as "'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). The RO granted service connection for depressive disorder in a January 2010 rating decision. A 30 percent rating was assigned, effective June 29, 2009. The Veteran submitted a notice of disagreement with this decision, and in July 2012 the AOJ issued a statement of the case continuing the 30 percent rating for the disability. The Veteran submitted a VA form 9, Appeal to the Board, in July 2012. A Supplemental Statement of the Case was issued in September 2013 and again in January 2014 continuing the 30 percent rating. However, in a March 2014 communication, before the matter was certified to the Board, the Veteran withdrew all issues on appeal except for entitlement to a TDIU. The Veteran filed the instant claim for increased rating in May 2016. In an August 2016 rating decision, the RO assigned a 50 percent rating for depressive disorder, effective May 24, 2016. The Board has reviewed the record and found no communication expressing an intent to file a claim for increase for his major depressive disorder following the May 2014 withdrawal of his appeal and prior to the May 2016 claim. Accordingly, the Board finds that there was no communication that can be reasonably construed as a claim for increase for this disability prior to May 24, 2016. Thus, the remaining question is whether it is factually ascertainable that the increase in the Veteran's major depressive disorder occurred within the one-year period preceding his filing for an increased rating on May 24, 2016. To the extent that the Veteran generally alleges that the extent of his current symptoms related to his psychiatric disorder were existent for years prior to this claim, if true, the Board would have no option but to deny the claim as a matter of law as the Veteran would be describing the onset of the current disability status more than one year prior to the filing of the increased rating claim on May 24, 2016. See Harper, 10 Vet. App. at 126-27. Here, the Veteran has not described in specific terms any particular date within the one-year period preceding May 24, 2016 wherein he perceived a worsening of his psychiatric disorder to the 50 percent level. The Board cannot factually ascertain from a combination of the lay and medical evidence that the Veteran's symptoms reached the 50 percent level at any particular time in the one-year period prior to May 24, 2016. In so finding, the Board notes that while VA mental records discuss the Veteran’s general symptoms and psychiatric treatment in the year prior to May 2016, there is no record of particular treatment reflecting acute change or an increase in the Veteran’s major depressive disorder. Thus, the Board finds that it is not factually ascertainable that the increase in the Veteran's major depressive disorder occurred within the one-year period preceding his filing of an increased rating claim on May 24, 2016. The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. REASONS FOR REMAND Although the Board regrets the delay, upon review of the claims file, the Board believes that additional development on the remaining claims is warranted. Service connection for sleep apnea and erectile dysfunction is remanded. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With respect to the claimed sleep apnea, post-service VA treatment records reflect diagnosis of obstructive sleep apnea, along with indication of sleep difficulties and insomnia related to his service-connected psychiatric disorder and potential aggravation of sleep apnea. In regard to the claimed erectile dysfunction, the Board notes that erectile dysfunction is indicated in post-service treatment records and is noted in conjunction with his service-connected lumbar spine and neuropathy disabilities. An April 2009 “Multiple Impairments Questionnaire” completed by a VA physician reflects a diagnosis of chronic backache secondary to spinal stenosis and lists one of the primary symptoms as erectile dysfunction. However, the record is insufficient to allow the Board to make a determination as to whether this disability is caused or aggravated by a service-connected disorder. The Veteran has not been afforded a VA examination pertaining to the claimed erectile dysfunction and sleep apnea. Given that the evidence of record indicates a potential relationship to service-connected disabilities, the Board finds that examinations with medical opinion based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale, would be helpful in resolving the claims for service connection. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Increased ratings for right and left lower extremity radiculopathy and depressive disorder are remanded. With respect to the pending claims for increased ratings for right and left lower extremity radiculopathy and for major depressive disorder, the Board notes that the Veteran recently submitted a VA Form 21-526EZ, fully developed claim, requesting increased ratings for the service connected major depressive disorder and right and left lower extremity radiculopathy, as well as a claim for TDIU. The record reflects that the AOJ is continuing development on these claims, including additional examinations. A November 2018 VA psychiatric examination is of record, and the RO increased the depressive disorder rating to 70 percent, effective July 25, 2018. However, remaining claim examination reports are not yet associated with the claims file. Given that there may be additional evidence and examinations pertaining to the AOJ’s development of the claims, the Board believes that remand is warranted pending completion of the development. Entitlement to a TDIU is remanded. In regard to the claim for a TDIU, as any decision with respect to the claims for increased ratings and service connection may affect the Veteran’s claim for a TDIU, the claim for a TDIU is inextricably intertwined with the claims for increased rating and service connection. As the claims should be considered together, it follows that, any Board action on the TDIU claim would be premature. Hence, a remand of this matter is warranted. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder outstanding treatment records, to specifically include updated VA treatment records. 2. Schedule the Veteran for a VA examinations to determine the nature and etiology of the claimed erectile dysfunction and sleep apnea. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed sleep apnea and erectile dysfunction: (1) had its onset in service or is otherwise medically related to service; or (2) was caused by or aggravated by a service connected disability, to specifically include psychiatric disability or lumbar spine disability The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. After completing any additional notification or development deemed necessary, the AOJ should readjudicate the Veteran's claims. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Wilkerson, Counsel