Citation Nr: 18155022 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-18 033 DATE: December 4, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection left hip condition is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection right hip condition is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection left ankle condition is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection right ankle condition is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection sleep apna condition is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to an increased rating in excess of 10 percent for gastroesophageal reflux disease (GERD), is denied. Entitlement to an increased rating of 70 percent for adjustment disorder with anxiety, conversion disorder is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for left hip condition is remanded. Entitlement to service connection for right hip condition is remanded. Entitlement to service connection for left ankle condition is remanded. Entitlement to service connection for right ankle condition is remanded. FINDINGS OF FACT 1. In a February 2009 rating decision, the RO denied service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea. Although the Veteran was notified of the RO’s decision and his appellate rights in a March 2009 letter, he did not appeal within the applicable time period, nor was new and material evidence received within one year of the issuance of that decision. 2. The evidence received since the final February 2009 rating decision denying service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea relates to an unestablished fact necessary to substantiate the claims, and does raise a reasonable possibility of substantiating the claims. 3. Sleep apnea had its onset in service. 4. The Veteran’s service-connected GERD is manifested by dysphagia, reflux, regurgitation, sleep disturbance, nausea, and vomiting; but has not more nearly approximated hematemesis, melena, anemia, weight loss, or substernal arm or shoulder pain productive of considerable impairment of health. 5. The Veteran’s service-connected adjustment disorder with anxiety, conversion disorder symptoms and impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The February 2009 rating decision denying service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea is final. 38 U.S.C. § 7105(c) (2012); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to warrant reopening the claim of service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea. 38 U.S.C. § 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 U.S.C. §§ 3.102, 3.303 (2017). 4. The criteria for an increased rating in excess of 10 percent for gastroesophageal reflux disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). 5. The criteria for a 70 percent rating, but no higher, for adjustment disorder with anxiety, conversion disorder symptoms have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9440 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to December 2008. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the August 2013 rating decision, the RO, inter alia, denied increased ratings in excess of 30 percent for adjustment disorder with anxiety, conversion disorder; and in excess of 10 percent for GERD. The RO also denied reopening the claims of service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claims of entitlement to service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea before reaching any merits determination. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. Left Hip, Right Hip, Left Ankle, Right Ankle, Sleep Apnea As set forth above, in a February 2009 rating decision, the RO denied entitlement to service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea. With the respect to the disabilities of the hips and ankles, the RO determined that although there was record of treatment in service, there was no permanent residual or chronic disability subject to service connection. With respect to the sleep apnea disability, the RO concluded that service treatment records indicated that a clinical sleep study revealed no obstructive sleep apnea. The Veteran was notified of his appellate rights in a March 2009 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s February 2009 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. That evidence includes a July 2013 VA clinical record showing a clinical sleep study with positive findings of obstructive sleep apnea. The record also includes a November 2012 letter from the Veteran’s treating physicians Y.G. and K.F., reporting that the Veteran was in their continued primary care and suffers from the diseases of bilateral ankle joint pain, bilateral hip joint pain, and sleep apnea. Given the basis for the prior denial of the claims, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claims of service connection for left hip condition, right hip condition, left ankle condition, right ankle condition, and sleep apnea, and raises a reasonable possibility of substantiating the claims. Reopening of the claims is therefore warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 2. Sleep Apnea The Veteran seeks service connection for sleep apnea. He contends that such disability is due to military service. For the reasons explained below, and affording the Veteran the benefit of the doubt, service connection for sleep apnea is warranted. In this case, the evidence of record indicates that the Veteran currently has a sleep apnea disability. Specifically, a July 2013 VA clinical record shows a diagnosis of obstructive sleep apnea. Based on this evidence, the Board finds that the first element of service connection has been met. The evidence of record includes a September 2007 pre-discharge compensation claim, in which the Veteran sought entitlement to service connection for multiple disabilities, including sleep apnea. The Veteran’s service treatment records (STRs) include an August 2008 Report of Medical History, the Veteran reported frequent trouble sleeping. A September 2008 STR shows a diagnosis of sleep apnea, and a referral for a sleep study. A November 2008 STR indicates that a clinical sleep study revealed no obstructive sleep apnea. Although the STRs contain a sleep study with findings of no obstructive sleep apnea, a diagnosis of sleep apnea in service is not required to meet in the in-service disease or injury requirement. See 38 C.F.R. § 3.303(d) (service connection warranted for a disease first diagnosed after service). The evidence contained in the STRs showing complaints, symptoms, and diagnosis of sleep apnea is sufficient to meet the second element of the service connection claim. The evidence of record also indicates that the third element of a nexus has been met. Specifically, a November 2012 letter from the Veteran’s treating physicians Y.G. and K.F., reported that the Veteran was in their continued primary care and suffers from sleep apnea. The Veteran’s STRs indicating symptoms and a diagnosis for sleep apnea, combined with the post-service diagnoses of sleep apnea and the continuation of treatment since service, is sufficient to establish that the Veteran’s sleep apnea had its onset in service. See 38 C.F.R. § 3.303 (a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”). For the reasons set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s diagnosed sleep apnea is related to service. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 3. GERD The Veteran seeks a higher rating for service-connected GERD. He contends that the rating currently assigned does not reflect the level of severity. The Veteran’s GERD has been rated under 38 C.F.R. § 4.114, Diagnostic Code 7346, as analogous to hiatal hernia. See 38 C.F.R. § 4.20. Under Diagnostic Code 7346, a 10 percent evaluation is assigned when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. Applying the facts in this case to the criteria set forth above, the Board concludes that the preponderance of the evidence is against the assignment of an increased rating in excess of 10 percent for the Veteran’s service-connected GERD. As noted above, in order to warrant the next higher rating of 30 percent, there must be evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. In this case, the Board concludes that the evidence shows that the Veteran’s overall disability picture does not nearly approximate the criteria for a 30 percent evaluation during any period of the appeal. Specifically, the July 2013 VA examination report shows that the Veteran’s reported symptoms included dysphagia, reflux, regurgitation, sleep disturbance, nausea, and vomiting. The examination, however, has shown that the Veteran’s GERD is not manifested by hematemesis, melena, anemia, or weight loss. Moreover, the examiner found no evidence of substernal arm or shoulder pain productive of considerable impairment of health. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an increased rating in excess of 10 percent for GERD. In reaching this decision, the Board considered assigning “staged” ratings pursuant to Hart. As delineated above, however, a review of all the evidence of record indicates that there are no distinctive periods where the Veteran met or nearly approximated the criteria for a rating in excess of 10 percent. The Board has also considered applying an alternative diagnostic code for the Veteran’s GERD, but can identify nothing in the evidence to suggest that another diagnostic code or codes would be more appropriate or advantageous to the Veteran. Neither the Veteran nor his representative has argued otherwise. The Board has also considered Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), but absent any indication or allegation that the Veteran is unemployable as a result of his service-connected GERD disorder, consideration of a total rating based on individual unemployability due to service-connected disability is not warranted in connection with this claim. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). In sum, the Board finds that a 10 percent rating for the Veteran’s GERD disorder most accurately contemplates the symptomatology and resulting impairment demonstrated in the evidence of record. This is a case where the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). 4. Adjustment Disorder with Anxiety, Conversion Disorder The criterion for rating chronic adjustment disorder is contained in the General Rating Formula for Mental Disorders. C.F.R. § 4.130, Diagnostic Code 9440. Under those criteria, a 30 percent rating is assigned where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, or mild memory loss, such as forgetting names, directions, recent events. A 50 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. The Veteran contends that an increased rating in excess of 30 percent for adjustment disorder with anxiety, conversion disorder is warranted. For the following reasons, a 70 percent rating, but no higher, is warranted. A July 2013 VA examination report indicates that the Veteran exhibited disturbances of motivation and mood. The examiner concluded that the Veteran’s adjustment disorder symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Private clinical records dated from July 2013 to December 2013 shows that the Veteran demonstrated a flattened affect. A December 2013 VA clinical record indicates that the Veteran reported that since his last visit he yelled three times per week, and experienced frustration, anxiety, and anger. He further noted that his wife would say the he was getting irritable more frequently. The Veteran further noted that it took 2 to 3 hours to calm himself down. A May 2015 VA disability benefits questionnaire indicates that the Veteran exhibited depression, anxiety, suspiciousness, chronic sleep impairment, and passive suicidal ideation. The report also indicated that the Veteran was working as a computer specialist. The examiner indicated that the Veteran demonstrated difficulty in establishing and maintaining effective work and social relationships, and had difficulty in adapting to stressful circumstances. The Veteran exhibited an inability to establish and maintain effective relationships. The examiner concluded that the Veteran demonstrated occupational and social impairment with reduced reliability and productivity. As noted above, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the May 2015 VA examiner concluded that the Veteran demonstrated occupational and social impairment with reduced reliability and productivity. Additionally, the examiner concluded that he exhibited passive suicidal ideation, and had difficulty in adapting to stressful circumstances, as well as, the inability to establish and maintain effective relationships. The Board finds the May 2015 VA examination report, along with the other evidence of record, persuasive to demonstrate symptoms and impairment more closely approximating the 70 percent rating criteria. The Veteran is not, however, entitled to a higher, 100 percent rating. The VA examination reports and treatment notes show that the Veteran did not experience symptoms such as grossly inappropriate behavior; persistent delusions or hallucinations; or persistent danger of hurting self or others. For example, private and VA mental health evaluations dated from June 2013 to May 2015 indicate that the Veteran’s thought content did not appear delusional or psychotic. He denied any auditory or visual hallucinations, and homicidal ideations. The Veteran did not demonstrate an intermittent inability to perform activities of daily living, including maintenance of minimal hygiene, disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Repeated examinations have shown that the Veteran was appropriately dressed, with good hygiene and grooming. He was also alert and oriented to all parameters. Moreover, the evidence of record indicates that the Veteran was employed and had relationships with his children and family. Thus, the evidence reflects that the Veteran’s symptoms and overall impairment do not more nearly approximate total occupational and social impairment required for a 100 percent rating. For the reasons set forth above, an increased rating of 70 percent, but no higher, is warranted for adjustment disorder with anxiety, conversion disorder. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. 5107 (b); 38 C.F.R. 4.3. REASONS FOR REMAND 1. Left Hip, Right Hip, Left Ankle, Right Ankle The Veteran seeks service connection for left hip condition, right hip condition, left ankle condition, and right ankle condition. In support of his claim, the Veteran submitted a November 2012 letter from treating physicians Y.G. and K.F., reporting that the Veteran was in their continued primary care and suffers from bilateral ankle and hip pain. Service treatment records reflect complaints and treatment for the hips and ankles. A remand is required to schedule the Veteran for a VA examination to obtain an etiological opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his bilateral hip condition. The claims file should be reviewed by the examiner. The VA examiner should provide the following opinion: whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any bilateral hip disability, to include pain that causes impairment in earning capacity, is related to active service, to include the noted hip symptoms. Provide a complete rationale for any opinions expressed. 2. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his bilateral ankle condition. The claims file should be reviewed by the examiner. The VA examiner should provide the following opinion: whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any bilateral ankle disability, to include pain causing impairment in earning capacity, is related to active service, to include the noted hip symptoms. Provide a complete rationale for any opinions expressed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel