Citation Nr: 18157373 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-49 226 DATE: December 13, 2018 ORDER Entitlement to service connection for major depressive disorder (claimed as depression and anxiety) is granted. Entitlement to service connection for sleep apnea, including as secondary to major depressive disorder, is granted. Entitlement to an earlier effective date prior to March 4, 2014, for a rating of 30 percent for ureterolithiasis with hydronephrosis and laser lithotripsy (hereinafter “kidney disorder”) is denied. Entitlement to an earlier effective date of March 4, 2014, but no earlier, for a 20 percent rating for left flank scars is granted. As new and material evidence was received, the claim for entitlement to service connection for bilateral hearing loss is reopened. To this extent only the claim is granted. As new and material evidence was received, the claim for entitlement to service connection for tinnitus is reopened. To this extent only the claim is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the Veteran’s diagnosed major depressive disorder is attributable to his active service. 2. Resolving all reasonable doubt, the Veteran’s sleep apnea is related to his major depressive disorder. 3. VA received the Veteran’s claim for a higher evaluation for his kidney disorder, which included his residual left flank scars, on March 4, 2014, and no communication prior to March 4, 2014, was received that could be construed as an informal or formal claim for a higher evaluation of his kidney disorder or his left flank scars. 4. In a final November 2009 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for bilateral hearing loss and tinnitus. 5. The evidence received since the November 2009 rating decision is not cumulative or redundant of the evidence of record and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. The criteria for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for sleep apnea as secondary to the Veteran’s major depressive disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. 3.102, 3.303, 3.310. 3. The criteria for entitlement to an effective date earlier than March 4, 2014, for the award of a 30 percent evaluation for ureterolithiasis with hydronephrosis and laser lithotripsy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to an effective date of March 4, 2014, but no earlier, for the rating of 20 percent for left flank scars have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The November 2009 rating decision denying the Veteran’s claims for entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 6. New and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence has been received to reopen the claim for entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and January 2016 rating decisions. The Board notes that a September 2014 rating decision originally denied the Veteran’s request for an increase of his kidney disorder. However, the March 2015 rating decision on appeal increased his rating to 30 percent, effective December 26, 2014, and granted a separate 20 percent rating for the Veteran’s left flanks scars. A subsequent September 2016 rating decision granted the assigned 30 percent rating an effective date of March 4, 2014. The January 2016 rating decision denied the Veteran’s claims for service connection for depression/anxiety and sleep apnea. In a May 2018 submission of additional evidence, the Veteran, through his attorney, alleged an inability for the Veteran to retain employment due to his service-connected disabilities. Effective March 24, 2015, when a claimant submits a communication indicating desire to file a claim for benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.350(a). 38 C.F.R. § 3.155(a); 79 Fed. Reg. 57,660 (Sept. 25, 2014) (codified in 38 C.F.R Parts 3, 19, and 20). When such a communication is received, the Agency of Original Jurisdiction (AOJ) shall notify the claimant of the information needed to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a); 79 Fed. Reg. 57,660 (Sept. 25, 2014). A complete claim on an application form designed for the purpose is required for all types of claims. 38 C.F.R. § 3.155(d). This request is referred to the AOJ for appropriate action to be determined by the AOJ in accordance with the revised regulations. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b) (2016). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). 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 caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). A veteran is not required to know the appropriate diagnosis of the mental disorder from which he suffers and his claim cannot be limited to the psychiatric diagnosis he identified as he is a lay person and could not accurately diagnose his disability. Thus, VA is obligated to adjudicate the mental health disorder a Veteran has, and not the one he may have mistakenly identified due to his lack of knowledge. In determining the scope of a mental health disability, the Board must consider a veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In September 2015, the Veteran sought service connection for sleep apnea and depression/anxiety. The Veteran’s service treatment records are void of any complaints or treatment for any mental health symptoms or mental health care or any issues regarding his sleep. In December 2015, a VA medical center (VAMC) record showed the Veteran to have undergone a sleep study in which it was noted he had been previously diagnosed with mild overall obstructive sleep apnea. The Veteran was fitted for a CPAP machine. In January 2017, a private medical examiner diagnosed the Veteran with major depressive disorder. The examiner’s report (submitted in May 2018) stated that the Veteran did not have more than one diagnosed mental disorder. The examiner found that the Veteran’s depressive disorder was more likely than not cause by his service connected medical conditions and caused symptoms of depression, anxiety, irritable moods, lack of motivation and energy, sleep problems, and poor concentration ability. The examiner stated that the Veteran’s depression developed in-service. The examiner specifically stated that the conclusive results of his mental status examination of the Veteran along with his review of the medical records collectively supported his findings that the Veteran’s major depressive disorder more likely than not began in service and continued uninterrupted through the present. He also stated that the Veteran’s mental health disorder was more likely than not aggravated by his service-connected kidney disorder. In a May 2017 a private medical report (submitted in May 2018), the Veteran’s obstructive sleep apnea was found to be related to his major depressive disorder. The examiner indicated the Veteran had been diagnosed in 2015 and placed on a CPAP machine. The examiner stated that in his opinion, it was as likely as not that the Veteran’s depressive disorder aided in the development of the Veteran’s sleep apnea and had permanently aggravated the Veteran’s sleep apnea. Although the Board is not required to accept medical authority supporting a claim, VA must provide reasons for rejecting that evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions in support of a determination. Jones v. Principi, 16 Vet. App. 219, 225 (2002). In this case, the private medical evidence is sufficient to decide the Veteran’s claim as the private opinion was provided by a psychologist and was based on an account of the Veteran’s medical history and other pertinent evidence, and a thorough rationale for the conclusion was provided. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board finds that the medical opinion is competent and credible. Further, there is no evidence to the contrary and the U.S. Court of Appeals for Veterans Claims has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, the evidence of record has established that the Veteran has a current diagnosed disability of major depressive disorder which has been related to his active service. As such, the Veteran is entitled to service connection for his major depressive disorder. Additionally, in regard to the Veteran’s claim for service connection for sleep apnea, based on the foregoing and resolving all reasonable doubt in favor of the Veteran, service connection for a sleep apnea, as secondary to the Veteran’s major depressive disorder, is warranted. Earlier Effective Date The Veteran is seeking an effective date prior to March 4, 2014, for the 30 percent evaluation for the kidney disorder and for the evaluation for his left flank scars, rated at 20 percent as of December 26, 2014. The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award “shall not be earlier than the date of receipt of application thereof.” 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where 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. In that regard, the law provides that 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 such date, otherwise the date of receipt of the claim.” 38 U.S.C. § 5110(b)(2). See 38 C.F.R. § 3.400(o)(2). The phrase “otherwise, date of receipt of claim” applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term “increase” as used in 38 U.S.C. § 5110 and 38 C.F.R § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). Further, under 38 C.F.R. § 3.157(b)(1), an informal claim may consist of a VA report of examination or hospitalization. Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established. VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R § 3.157. See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. In the current matter, on March 4, 2014, VA received a statement in support of claim from the Veteran which requested an increased rating for his kidney disorder (at that time stated to be and rated as hydronephrosis). As stated in the Board’s introduction, a September 2014 rating decision originally denied the Veteran’s request for an increase of his kidney disorder. However, a subsequent March 2015 rating decision increased his rating to 30 percent, effective December 26, 2014, and granted a 20 percent evaluation for the Veteran’s left flank scars, as of December 26, 2014. A subsequent September 2016 rating decision adjusted the assigned 30 percent rating for the Veteran’s kidney disorder to an effective date of March 4, 2014. After review of the Veteran’s claims file, the Board finds that prior to the March 4, 2014, communication, the Veteran’s claims file contains no communication from or documents submitted by the Veteran that remain unadjudicated in regard to either his kidney disorder or his left flank scars. Specifically, there was no communication from the Veteran which could be construed or considered as an application for an increased rating for his kidney disorder or his scars. Furthermore, prior to the March 4, 2014, request for an increase there were no medical records or other evidence submitted or obtained which made it factually ascertainable that there was an increase in the severity of the Veteran’s kidney disorder or his scars. Though the Veteran did submit correspondence regarding other claims, there is no evidence of record in the Veteran’s claims file regarding his kidney disorder from a 1981 rating decision to his March 2014 claim for an increased evaluation. Indeed, a review of the record one year prior to the date of the informal March 4, 2014, claim does not reveal any medical records regarding the Veteran’s kidney disorder or his scars which made it factually ascertainable that his kidney disorder or his scars had increased in severity. In a January 2016, DRO hearing, the Veteran testified that he believed his increased ratings should date back to 1981 for his kidney disorder and 1977 for his scars. However, the Board notes that January 1978 and August 1981 rating decisions evaluated the Veteran’s scars and kidney disorder. The Veteran did not appeal these decisions and they are now final. 38 U.S.C. § 7104. Thus, the period that is before the Board’s consideration is that period between the final 1981 rating decision and the Veteran’s March 4, 2014, correspondence. As discussed above, there is no communication from the Veteran or any medical record on file during this period which could be construed as a request for an increased rating or which made it factually ascertainable that the Veteran’s kidney disorder had increased in severity. However, in regard to the Veteran’s claim for an earlier effective date for his left flank scars rating, the Board finds that the Veteran is entitled to an effective date of March 3, 2014, for the 20 percent evaluation for his left flank scars. As discussed, the Veteran clearly requested an increase in his kidney disorder at that date, in which his left flank scars were included. In a November 2015 statement in support of his claim and in his January 2016 DRO hearing, the Veteran stated that his left flank scars had been painful since his surgeries in 1974 and 1981. A March 2015 VA examination confirmed that the Veteran’s painful scars were those from his prior 1974 and 1981 surgeries and that he had 3 painful scars. As such, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a March 4, 2014, effective date for his left flank scars. Thus, in light of the foregoing, the Board has determined that March 4, 2014, is the date of receipt of the claim for a higher evaluation for the Veteran’s kidney disorder. Considering the foregoing, the Board finds that the Veteran is not entitled to an effective date prior to March 4, 2014, for the award of a 30 percent evaluation for his kidney disorder, but that he is entitled to an effective date of March 4, 2014, for the award of 20 percent for his left flank scars. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. The Board has considered the exception to that general rule; however, the evidence does not demonstrate that it was factually ascertainable that the Veteran’s service-connected kidney disorder was 30 percent disabling within one year prior to March 4, 2014; additionally, the Board has not found that there was factually ascertainable evidence in the Veteran’s file which indicated that his left flank scars were 20 percent disabling prior to March 4, 2014. 38 C.F.R. § 3.400(o)(2). Indeed, the record does not show any relevant evidence prior to March 4, 2014, that demonstrates the Veteran’s kidney disorder or left flank scars met the schedular rating criteria for a higher evaluation. Therefore, an effective date earlier than March 4, 2014, for either condition is not warranted. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that as the preponderance of the evidence is against the claim for an earlier effective date prior to March 4, 2014, for his kidney disorder and his left flank scars, the benefit of the doubt rule does not apply, and therefore, the claims for an effective date prior to March 4, 2014, are denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, resolving all reasonable doubt in favor of the Veteran, the Board does find that the Veteran is entitled to an effective date of March 4, 2014, for his left flank scars. New Material Evidence Historically, November 2001 and November 2009 rating decisions denied the Veteran’s claim for service connection for bilateral hearing loss and tinnitus finding that no link between the Veteran’s service and his hearing loss and/or tinnitus had been shown. The Veteran did not appeal these decisions and they are now final. 38 U.S.C. § 7104. In March 2014, the Veteran sought to reopen his claims for service connection for bilateral hearing loss and tinnitus. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that its task is to first decide whether new and material evidence has been received, as opposed to whether the evidence actually substantiates the Veteran’s claim. Pertinent evidence added to the record since the final November 2009 rating decisions include the Veteran’s statements, a VA examination, VA medical records, private medical records, a Decision Review Officer (DRO) hearing, and copies of the Veteran’s service treatment records, which were previously in the Veteran’s file. In regard to the Veteran’s hearing, May 2017 and May 2018 private examination reports stated that the Veteran’s bilateral hearing loss and tinnitus were more likely than not related to his active duty service. Consequently, as the prior denials stated that there was no link between the Veteran’s bilateral hearing loss and tinnitus and his active duty service, and there has now been evidence submitted which indicates there may be such a link, and resolving all reasonable doubt in favor of the Veteran, the Board finds that new and material evidence has been submitted regarding the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. Thus, the claim for entitlement to service connection for bilateral hearing loss and tinnitus are reopened and remanded as discussed below. REASONS FOR REMAND The Board notes that in his May 2018 private medical opinion submission, the examiner indicated that the Veteran had been in receipt of social security administration (SSA) disability benefits since 2005. There are no records regarding SSA decisions or records in the Veteran’s claims file. These records may provide evidence to substantiate the Veteran’s service connection claims. Therefore, on remand, the AOJ should request any available SSD records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, the Board notes that 38 C.F.R. § 4.85 mandates that a hearing test for hearing impairment for VA purposes must be conducted by a state-licensed audiologist. A June 2014 VA examination which found that the Veteran’s hearing loss and tinnitus were less likely than not related to his service was noted to have been performed by a program support assistant. Private medical records from the Veteran’s treating ear, nose, and throat (ENT) physician indicated that the Veteran’s hearing test was strongly supportive of a noise induced hearing etiology for his hearing loss. That report, however, did not state that the Veteran’s hearing loss and tinnitus were related to his active duty service. Furthermore, as previously stated, the Veteran submitted private medical reports in which a private physician found that the Veteran’s bilateral hearing loss and tinnitus were as likely as not related to his active duty service. However, that private examiner was not indicated by his attached curriculum vitae (CV) to be either a state-licensed audiologist or an ENT physician. Indeed, his CV showed his medical practice was that of a family practice physician. Thus, there is no medical evidence in the file by a qualified examiner regarding the nature and etiology of the Veteran’s hearing loss being linked to his active duty service. As such, that the medical records in the Veteran’s claims file, are inadequate for adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2. These matters are REMANDED for the following actions: 1. Contact the SSA and request a copy of any decisions and/or records pertinent to the Veteran’s claim for SSA disability benefits, including all medical records, and associate all records received with the claims file. 2. Thereafter, schedule the Veteran for an appropriate audiological examination, by an examiner who has not previously examined him, to determine the nature and likely etiology of his bilateral hearing loss and tinnitus. The claims file and all pertinent records must be made available to the examiner for review. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s claimed hearing loss had onset during service or is otherwise related to his active military service. A discussion of the facts and medical principles involved (to include acoustic trauma and military noise exposure), the Veteran’s service treatment records, lay assertions, specifically the Veteran’s January 2016 hearing testimony and the submitted lay statements of record, should all be considered in giving this opinion. The examiner is specifically asked to address the June 2014 private medical records, which stated that the Veteran’s hearing examination was strongly supportive of noise induced hearing loss and the May 2017 and May 2018 private examination reports which stated the Veteran’s hearing loss and tinnitus were more likely than not related to his active service. The examiner is reminded that it is not a sufficient rationale for a negative nexus opinion merely to state that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). (Continued on the next page)   The examiner must explain the rationale for all opinions, citing to supporting clinical data and/or medical texts or treatises as deemed appropriate. If the examiner determines that a requested opinion cannot be given without resort to speculation, the examiner must explain the reason for that conclusion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel