Citation Nr: 18156479 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-53 335 DATE: December 11, 2018 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a left knee disability is granted. Entitlement to an effective date prior to August 13, 2014, for the grant of service connection for tinnitus is denied. Entitlement to an effective date of August 13, 2014, but no earlier, for the grant of service connection for major depressive disorder with anxious distress is granted. REMANDED Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a nerve disability is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to a rating in excess of 20 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee scar is remanded. Entitlement to an initial rating in excess of 70 percent for major depressive disorder with anxious destress is remanded. Entitlement to an effective date prior to December 19, 2016, for a separate compensable rating for a right knee scar is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed December 2012 decision, a claim of service connection for a left knee disability was denied. 2. The evidence associated with the claims file since the December 2012 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim of service connection for a left knee disability. 3. The record contains no informal claim, formal claim, or any written intent to file a claim for tinnitus prior to August 13, 2014. 4. Resolving reasonable doubt in his favor, the Veteran has had major depressive disorder with anxious destress since he filed a claim for a mental health condition on August 13, 2014. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for a left knee disability are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for an effective date prior to August 14, 2014, for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). 3. The criteria for an effective date of August 14, 2014, but no earlier, for the grant of service connection for major depressive disorder with anxious distress are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had naval service from March 1978 to April 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and December 2017 rating decisions issued by Regional Offices (ROs) of the Department of Veterans Affairs (VA). Claim to Reopen – Left Knee The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. In a December 2012 rating decision, the claim was denied because the evidence did not indicate that the Veteran had a left knee disability related to his military service or a service-connected disability. Since then, in June 2016, a VA examiner provided a medical opinion regarding the Veteran’s claimed lumbar spine disability. In his rationale, he noted that a likely example of compensatory biomechanical degenerative changes due to the right knee might be the left knee but affecting a distant joint like the lumbar spine was unlikely. Although ultimately providing a negative opinion regarding the lumbar spine, the examiner noted a possible relationship between the Veteran’s service-connected right knee and his nonservice-connected left knee. The Board finds that evidence new and material. Therefore, the claim is reopened. Effective Date Claims Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation 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 later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a decision becomes final (by appellant decision or failure to timely initiate and perfect an appeal) prior to receipt of an application to reopen, the effective date of entitlement is the date of receipt of such application or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(h)(2). 1. Tinnitus On August 13, 2014, the Veteran filed a claim of service connection for tinnitus. In a December 2014 rating decision, the RO granted service connection for tinnitus effective August 16, 2014. The Veteran appealed, seeking an earlier effective date. In an August 2016 rating decision, the RO granted an effective date of August 13, 2014. The Board has considered whether any evidence of record prior to August 13, 2014, could serve as an informal claim in order to entitle the Veteran to an earlier effective date for tinnitus. However, no document submitted prior to August 13, 2014, indicates an intent to pursue a claim for that disability. As noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. In this case, entitlement arose prior to the date of the claim. Therefore, the August 13, 2014 date selected by the RO is the earliest possible effective date with regards to the claim for tinnitus. 38 C.F.R. § 3.400(b)(2). Based on the foregoing, the Board finds that an effective date prior to August 13, 2014, for tinnitus is not warranted. 2. Major Depressive Disorder On August 13, 2014, the Veteran filed a claim of service connection for a mental health condition. In a December 2017 rating decision, the RO granted service connection for major depressive disorder with anxious distress effective September 26, 2016. The Veteran appealed and is seeking an earlier effective date. In this case, the RO assigned the effective date based on a determination that entitlement arose on September 26, 2016. As noted previously, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. The Board notes that VA treatment records do not show any outpatient treatment for a psychiatric disorder prior to September 26, 2016, and that depression screenings in January 2014, June 2015, and March 2017, were negative for depression. However, on September 26, 2016, a private psychologist indicated that the Veteran had a depressive disorder secondary to his service-connected right knee disability and tinnitus. The psychologist also opined that the Veteran’s depressive disorder had affected his ability to sustain gainful employment since the date of the claim in August 2014. In addition, the Board notes that the evidence indicates that the Veteran has had tinnitus and a right knee disability since August 13, 2014. Therefore, the Board finds that the evidence for and against determining that entitlement arose on or before the date of the claim is at least in equipoise. Resolving reasonable doubt in the Veteran’s favor, the Board finds that entitlement to service connection for major depressive disorder with anxious distress arose on or before August 13, 2014. Therefore, an effective date of August 13, 2014, is the earliest possible effective date with regards to the claim for the disability. 38 C.F.R. § 3.400(b)(2). Based on the foregoing, the Board finds that an effective date of August 13, 2014, but no earlier, for major depressive disorder with anxious distress is warranted. REASONS FOR REMAND A review of the record indicates that the Veteran applied for disability benefits from the Social Security Administration (SSA). Because those records may be relevant to the Veteran’s appeal, the Board finds that a remand is necessary so that they may be obtained and reviewed by the Agency of Original Jurisdiction (AOJ). Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Regarding sleep apnea, in February 2018, the Veteran’s attorney submitted a Disability Benefits Questionnaire (DBQ) by a private physician, Dr. M.B., dated in November 2016. The physician noted that the Veteran suffered poor sleep at night despite using his CPAP machine and that this led to persistent daytime sleepiness and fatigue, which exacerbated his psychiatric impairment. She later opined, however, that the Veteran’s depressive disorder and anxiety aided in the development of sleep apnea and permanently aggravated his sleep apnea, noting studies that show co-morbidity of the two disabilities. Because the private physician’s rationale is unclear given her findings suggesting that the Veteran’s sleep apnea aggravated his psychiatric disorder, the Board finds that a remand is necessary for a VA examination. Regarding the Veteran’s service-connected psychiatric disorder and right knee disability, VA examinations were most recently conducted in December 2016 and October 2017. The evidence suggests that those disabilities have worsened in severity. Therefore, the Board finds that a remand is necessary for additional VA examinations. The Veteran has also raised the issue of entitlement to TDIU in connection with his claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the AOJ should adjudicate this matter in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Obtain and associate with the claims file the Veteran’s SSA disability benefits records, to include the claim, any decision, and any medical records. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any obstructive sleep apnea that may be present. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present obstructive sleep apnea is caused or chronically worsened by the Veteran’s service-connected psychiatric disorder. In rendering this opinion, the examiner should address the evidence submitted in February 2018, to include the November 2016 private medical opinion by Dr. M.B., and an article relating to psychiatric disorders and sleep apnea. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected right knee disability. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran’s ordinary activity. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran’s functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide any of the requested findings without resorting to speculation, the examiner must state why that is so and provide a detailed rationale as to the reason why the requested findings could not be provided. 5. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected major depressive disorder with anxious distress. All indicated tests should be performed and all findings should be reported in detail. 6. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 7. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mishalanie, Counsel