Citation Nr: 18155047 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 17-48 000 DATE: December 4, 2018 ORDER Entitlement to an earlier effective date, prior to March 30, 2015, for the grant of service connection for tinnitus is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to an evaluation in excess of 20 percent disabling for service-connected diabetes mellitus, type II is remanded. Entitlement to an evaluation in excess of 50 percent disabling for service-connected post-traumatic stress disorder (PTSD) is remanded. Entitlement to special monthly compensation for loss of use of the creative organ is remanded. FINDING OF FACT Prior to March 30, 2015, there is no other document that can be construed as a claim, formal or informal, for service connection for tinnitus. CONCLUSION OF LAW The criteria for an effective date earlier than March 30, 2015, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from February 1970 to October 1971. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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 duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Earlier Effective Dates - Generally In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from that date. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2018); Harper v. Brown, 10 Vet. App. 125 (1997). As applicable in this appeal, a “claim” is defined broadly to include 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) (2018). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a) (2018). 1. Entitlement to an earlier effective date, prior to March 30, 2015, for the grant of service connection for tinnitus The Regional Office (RO) has assigned an effective date of March 30, 2015, for the award of service connection for tinnitus, based upon the date of receipt of the Veteran’s statement in support asserting this claim. He seeks the assignment of an earlier effective date. Based upon a complete review of the evidence, and for the reasons discussed below, the Board finds that the currently assigned effective date of March 30, 2015, is the earliest effective date available for service connection for the Veteran’s tinnitus. As a preliminary matter, the Board notes that the Veteran filed a claim for service connection for bilateral hearing loss in May 2007. No claim for tinnitus was indicated. During an VA audiological examination in October 2007, the Veteran reported symptoms of tinnitus. There was no mention of a date of onset, and as no claim for service connection was pending, the examiner did not provide an opinion as to its etiology. Pursuant to a November 2007 rating decision, the Veteran was granted service connection for bilateral hearing loss. Notification of the RO’s decision was forwarded in the same month. The Veteran did not file an appeal. In March 2015, the Veteran filed a new claim for service connection for tinnitus. Prior to that time, no correspondence, formal or informal, was received that could be reasonably construed as a claim for service connection. Although the Board recognizes that the Veteran complained of tinnitus on examination in October 2007, no formal claim had been filed and a causal linkage to active service had not been established. Therefore, the Board finds that the Veteran is not entitled to an effective date earlier than March 2015. As previously noted, the effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2)(i) (2018). If the grant is based on a claim which has been finally denied and subsequently reopened by the receipt of new and material evidence, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (q), (r) (2018). Here, the Veteran has not alleged, nor does the evidence of record indicate, that he filed a claim or had an informal communication asserting his entitlement to service connection for tinnitus prior to his most recent claim. That claim was received on March 30, 2015. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. §§ 3.1 (b), 3.151(a), 3.155 (2018). Accordingly, the Board finds that the assignment of an earlier effective date is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that he is entitled to service connection for obstructive sleep apnea, to include as due to his service-connected PTSD and/or diabetes mellitus, type II. Review of the record indicated that the Veteran was afforded a VA examination in June 2015. A diagnosis of obstructive sleep apnea was confirmed based upon a sleep laboratory study conducted in November 2013. During the clinical evaluation, the examiner noted that the Veteran’s weight was 275, with a body mass index (BMI) of 43.1. Morbid obesity was noted. On review of the record, the examiner opined that it was less likely than not that the Veteran’s obstructive sleep apnea was causally related to active service, to include as due to his service-connected diabetes and/or PTSD. Instead, the examiner indicated that his condition was most likely related to the Veteran’s BMI of 43.1, morbid obesity, and increased neck size. In June 2017, the Veteran submitted a lay statement indicating that sleep apnea began shortly after separation. Specifically, he reported shortness of breath while sleeping and indicated that his wife observed the symptoms. In a separate statement, the Veteran’s wife noted that she often woke the Veteran from sleeping to remind him to breath. At her request, the Veteran eventually reported the symptoms to a private physician. According to the Veteran, the physician advised that the condition was causally related to excessive weight and neck thickness. At the time of the physician’s opinion, the Veteran stated that he weighed only 138 pounds. On review of the record, the Board notes that the record does not contain any evidence that the provider referenced in the Veteran’s lay statement was ever identified or that records from the treating facility were obtained. As the June 2017 lay statements suggest the onset of symptoms soon after separation and that relevant treatment records have not been associated with the claims file, a remand is required to obtain the records noted. 2. Entitlement to an evaluation in excess of 50 percent disabling for service-connected post-traumatic stress disorder (PTSD) is remanded. The Veteran contends that his service connected PTSD is worse than currently evaluated. The Board recognizes that an August 2017 rating decision increased the assigned evaluation for the Veteran’s service-connected PTSD from 30 percent disabling to 50 percent disabling. In his September 2017 substantive appeal, the Veteran complained of worsening symptoms. He also suggested that the medical evidence supports an evaluation of 70 percent disabling. Review of the record indicates that his symptoms were last evaluated during an April 2014 VA examination. In a March 2015 statement in support, the Veteran disputed the VA examiner’s findings that he had “4-5 close friends.” He denied having friends and stated that he was only social with his immediate family. The Veteran acknowledged symptoms including social isolation, panic attacks, nightmares, and problems in public places. He also reported difficulty maintaining relationships, to include in the workplace. The Board recognizes that the Veteran is generally competent to report on his current symptoms and their worsening. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where there is evidence that the condition has worsened since the last examination, a veteran is entitled to a new VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). As the record suggests worsening symptoms, a new VA examination is required. 3. Entitlement to an evaluation in excess of 20 percent disabling for service-connected diabetes mellitus, type II is remanded. The Veteran contends that the current severity of his service-connected diabetes mellitus, type II. Review of the record indicates that the Veteran’s service-connected diabetes mellitus, type II was last evaluated in June 2015. Thereafter, the Veteran continued to seek treatment for his condition. In September 2016, the Veteran’s diabetes was described as under “acceptable control.” A pharmacy record, dated the same month, shows that he was prescribed insulin. High blood sugars were reported over the previous several months. In April 2017, complaints of diabetic foot pain and thick, hard nails were reported. Due to pain, the Veteran endorsed difficulty walking. He also underwent multiple evaluations for diabetic retinopathy. The Board recognizes that the Veteran is generally competent to report on his current symptoms and their worsening. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where there is evidence that the condition has worsened since the last examination, a veteran is entitled to a new VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). As the record suggests worsening symptoms, the Board finds that a new examination is required. 4. The issues of entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II and entitlement to special monthly compensation for loss of use of a creative organ are remanded. The Veteran contends that he is entitled to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II. Review of the record indicates that the Veteran was afforded a VA examination in June 2015. During the clinical evaluation, the Veteran reported the onset of his erectile dysfunction in 2007. Laboratory studies conducted in August 2007 revealed a very low testosterone level; it was listed as 170. On the date of examination, a testosterone level of 120.94 was indicated. Following the clinical evaluation, the examiner opined that the Veteran’s erectile dysfunction was not causally related to active service, to include as secondary to his service-connected diabetes mellitus, type II or/and PTSD. Instead, the examiner concluded that his condition was secondary to hypogonadism. No rationale was provided in support of the examiner’s opinion. On review of the record, the Board finds the VA examiner’s opinion is inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See 38 U.S.C. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Notably, the June 2015 examiner concluded that the Veteran’s erectile dysfunction was casually related to hypogonadism, and not his service-connected disabilities, to include diabetes mellitus, type II. No rationale was provided for the examiner’s opinion, and there is no record of the Veteran had ever been diagnosed with hypogonadism. Additionally, the examiner did not address whether the Veteran’s disability was aggravated by a service-connected disability. Accordingly, the Board finds that a new examination is required. Regarding the Veteran’s claim of entitlement to special monthly compensation based on loss of use of the creative organ, the Board’s consideration of this issue depends on the Board’s determination on the Veteran’s claim for service connection for erectile dysfunction, to include as secondary to his service-connected diabetes mellitus, type II. Because that issue is being remand, these claims are inextricably intertwined. Accordingly, adjudication of this claim will be deferred until further development of the inextricably intertwined issue is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records and associate them with the claims file. All efforts to obtain evidence must be documented in the claims file. 2. Ask the Veteran to identify the provider and/or facility where he received treatment for symptoms related to obstructive sleep apnea soon after separation. All necessary authorizations must be obtained and records requests should be forwarded to the providers indicated. All correspondence and any records received must be associated with the claims file. 3. Upon receipt and review of the records obtained, the Veteran should be scheduled for an examination by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. The examiner must fully review and evaluate the claims file, to include any newly obtained records, and attest to its review. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail along with supportive rationale. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s obstructive sleep apnea was causally related to active service. The examiner is also asked to provide a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that sleep apnea was a) caused by service-connected diabetes mellitus, to include any complications thereof, or PTSD; or, b) worsened beyond the normal progression as a result of the Veteran’s service-connected diabetes mellitus, to include any complications thereof, or PTSD. The examiner is specifically invited to comment on all medical opinions of record and fully explain or distinguish any conflicting findings. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and current severity of the Veteran’s PTSD. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to respond to the following: The examiner must specifically opine as to whether the Veteran’s psychiatric condition impacts his employability and comment on the degree or level of interference. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the medical evidence of record and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 5. Schedule the Veteran for an appropriate VA examination to determine the nature and current severity of the Veteran’s diabetes mellitus, type II. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner must specifically opine as to whether the Veteran’s diabetes mellitus, type II impacts his employability and comment on the degree or level of interference. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the medical evidence of record and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his erectile dysfunction. The examiner must fully review and evaluate the claims file and attest to its review. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail along with supportive rationale. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction is causally related to active service. The examiner is also asked to provide a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that erectile dysfunction was: c) caused by service-connected diabetes mellitus, to include any complications thereof; or, d) worsened beyond the normal progression as a result of the Veteran’s service-connected diabetes mellitus, to include any complications thereof. Specifically, the examiner is invited to comment on the June 2015 VA opinion asserting that the Veteran’s condition was casually related to hypogonadism. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 6. Then readjudicate the Veteran’s claims, to include the inextricably intertwined claim. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel