Citation Nr: 18157650 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-21 407 DATE: December 13, 2018 ORDER Entitlement to an earlier effective date, prior to September 26, 2013, for the grant of service connection for a right hip disability is denied. Entitlement to service connection for sleep apnea disability is denied. Entitlement to service connection for hypertension disability is denied. REMANDED Entitlement to an earlier effective date, prior to March 14, 2016, for the grant of service connection for right lower extremity radiculopathy (sciatic nerve) disability is remanded. Entitlement to an earlier effective date, prior to March 14, 2016, for the grant of service connection for left lower extremity radiculopathy (sciatic nerve) disability is remanded. Entitlement to an earlier effective date, prior to March 14, 2016, for the grant of service connection for left lower extremity radiculopathy (femoral nerve) disability is remanded. Entitlement to an earlier effective date, prior to September 26, 2013, for the grant of service connection for left hip disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for migraine disability is remanded. Entitlement to an earlier effective date, prior to March 14, 2016, for entitlement to a total disability rating based upon individual unemployability (TDIU) is deferred. Entitlement to an earlier effective date, prior to March 14, 2016, for Dependents’ Educational Assistance is deferred. FINDINGS OF FACT 1. The evidence of record does not contain any earlier formal or informal increased rating claim filed prior to September 26, 2013 in regard to the service connection claim of the right hip. 2. The preponderance of the evidence is against finding that the Veteran has a sleep apnea disability that is etiologically related to a disease, injury, or event which occurred in service. 3. The preponderance of the evidence is against finding that the Veteran has a hypertension disability that is etiologically related to a disease, injury, or event which occurred in service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 26, 2013 for the grant of service connection of the right hip are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017); 38 C.F.R. § 3.155 (in effect prior to March 24, 2015). 2. The criteria for service connection for a sleep apnea disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for service connection for a hypertension disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to December 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal of April 2016, January 2015, and May 2014 rating decisions of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). Veterans Claims Assistance Act of 2000 (VCAA) The notice requirements of 38 U.S.C. § 5103(a) have been met by a December 2013 letter. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes VA’s duty to assist has been satisfied. The Veteran’s service treatment records and VA medical records are in the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2014). The Veteran was provided a VA examination for the right hip and hypertension in March 2016. As will be discussed in greater detail below, the Board believes that there is no competent evidence suggesting an association between the Veteran’s claimed sleep apnea and his active service. There is likewise no competent evidence of continuity of symptomatology from service or otherwise linking the Veteran’s claimed sleep apnea to his service. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Legal Criteria Pertinent VA law and regulations provide that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2017). 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 (a) caused by or (b) aggravated by a service-connected disability. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012). 1. Entitlement to service connection for sleep apnea disability is denied. The question for the Board is whether the Veteran has a current sleep apnea disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this case, it is unclear if the Veteran suffers from sleep apnea. Regardless, there is no evidence to support that the Veteran suffers from sleep apnea with onset or etiological relationship to service. Service treatment records (STRs) are silent for treatment or complaints of sleep or respiratory trouble. Further, the Veteran did not complain of sleep disorder until decades after separation from service. While the Veteran is competent to report having experienced symptoms of trouble sleeping since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence weighs against finding that the Veteran’s claimed sleep apnea began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to service connection for hypertension disability. The question for the Board is whether the Veteran’s hypertension disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Hypertension is defined as diastolic blood pressure predominately 90 mm or greater, and isolated systolic hypertension is defined as systolic blood pressure predominately 160 mm or greater, with a diastolic blood pressure of less than 90 mm. Under Diagnostic Code 7101, hypertension or isolated systolic hypertension must be confirmed by blood pressure readings taken two or more times on at least three different days and is rated according to a range of diastolic pressure levels. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The STRs reflect 130/80 blood pressure at entrance, and 140/90 blood pressure at separation from service, reflecting a slight increase in blood pressure during service. A VA examiner’s opinion was requested to consider these readings. The March 2016 VA examiner opined that the Veteran’s hypertension is not at least as likely as not related to an in-service injury, event, or disease, including the 140/90 reading on the separation examination during service. The rationale was that there was insufficient documentation in the claims file of the Veteran’s claimed hypertension until 2002 and 2005. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA treatment records show the Veteran was not diagnosed with hypertension until 2002, decades after separation from service. The Veteran is not competent to provide a diagnosis in this case or determine that his symptoms were manifestations of hypertension. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypertension began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Effective Date 3. Entitlement to an earlier effective date, prior to September 26, 2013, for the grant of service connection for a right hip disability is denied. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection benefits shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application for such benefits. The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2017). The terms “claim” and “application” mean 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) (2017). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2016). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a) (2017). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the United States Court of Appeals for Veterans Claims (Court) held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). Entitlement to an earlier effective date, prior to September 26, 2013, for right hip disability is denied. The Board notes that, as further explained below, the Veteran’s April 10, 2007 letter indicated he suffered from hip pain and was later clarified as a claim to pertain to the left hip only. The Veteran filed his claim for service connection of the right hip on September 26, 2013. The date of claim of record, September 26, 2013, is the controlling date for the effective date assigned under the factual circumstances in this matter. An earlier effective date is not warranted. REASONS FOR REMAND 1. Entitlement to an earlier effective date, prior to March 14, 2016, for the grant of service connection for the right lower extremity radiculopathy (sciatic nerve) disability is remanded. 2. Entitlement to an earlier effective date, prior to March 14, 2016, for the grant of service connection for the left lower extremity radiculopathy (sciatic nerve) disability is remanded. 3. Entitlement to an earlier effective date, prior to March 14, 2016, for the grant of service connection for the grant of the left lower extremity radiculopathy (femoral nerve) disability is remanded. Regarding the Veteran’s claims for an earlier effective date for bilateral, lower extremity radiculopathy, the Board finds a clarifying VA examiner’s opinion is warranted. The RO assigned an effective date of March 14, 2016, stating that this is the date of the VA examination which first related this disability to the service-connected lumbar spine disability. The March 2016 VA examination noted radiculopathy diagnosed in 2016. However, the evidence suggests radiculopathy was associated with the lumbar disability prior to that exam. The Veteran filed a claim for his lumbar spine disability in February 27, 2007, and his lumbar spine disability was service connected from that date forward. A March 2007 VA treatment record states chronic low back pain with radiation. A May 2009 private examiner stated the Veteran’s lumbar disc disease was extension and radiculopathy was present. An August 2012 private examiner also noted neuropathy in the lower extremities. An addendum VA examiner’s opinion is requested to consider the evidence of record that suggests radiculopathy existed prior to 2016, and provide, to the extent possible, a clarifying opinion as to the onset of the disorder. 4. Entitlement to an earlier effective date, prior to September 26, 2013, for the grant of service connection for the left hip disability is remanded. Regarding the Veteran’s claim for an earlier effective date for left hip disability, the Board finds a clarifying VA examiner’s opinion is warranted. By April 10, 2007 letter, received April 12, 2007, the Veteran indicated in part that he suffered from hip pain. The Veteran was contacted and asked whether he was filing a claim in response to the letter. The Veteran stated in part he would like to claim left hip pain secondary to his service-connected knee. He specified the left hip only. The RO then adjudicated the claim with the claim for service connection of back, characterizing the issue as service connection for back condition to include hip condition, as secondary to the service-connected disability of left knee. The RO later granted service connection for the back. The RO treated the September 26, 2013 claim for hip as a new claim. Remand is required because in order to adjudicate this claim it is necessary to determine the onset of the service-connected left hip disability. Left hip strain was diagnosed by March 2016 VA examination. While the Veteran complained of left hip pain prior to 2016, it is unclear whether this pain was the service-connected left hip strain secondary to service-connected left knee, or service-connected left, lower extremity radiculopathy, secondary to service-connected low back. An addendum VA examiner’s opinion is requested to consider the evidence of record, and provide, to the extent possible, a clarifying opinion as to the onset of the left hip strain. 5. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran has submitted evidence, with waiver of RO consideration, indicating a link between the Veteran’s mental disorder and his military service. In particular, lay statements, scholarly articles, and a February 2016 private examiner’s report, opining the Veteran suffers from unspecified depressive disorder more likely than not with onset in military service, and aggravated by his service-connected left knee and low back. Considering this evidence, remand for a VA examination is requested. 6. Entitlement to service connection for a right ankle disability is remanded. 7. Entitlement to service connection for a left ankle disability is remanded. The Veteran has indicated he suffers from bilateral ankle disorder as a result of his service. In light of the Veteran’s extensive service-connected disabilities of the lower extremities, the Board finds a VA examination is warranted to determine the nature and etiology of the Veteran’s claimed bilateral ankle disorder. 8. Entitlement to service connection for migraine disability is remanded. The Veteran has complained of headaches in recent VA treatment records. The Veteran’s entrance examination reflects frequent or severe headaches. Considering this evidence, a VA examination is warranted to determine the nature and etiology of any headache disability, to include aggravation of a preexisting condition. 9. Entitlement to an earlier effective date for TDIU and DEA. The issues of entitlement to an earlier effective date, prior to March 14, 2016, for entitlement to TDIU and Dependents’ Educational Assistance are inextricably intertwined with the remanded issues, and so deferred. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Provide the Veteran an opportunity to identify and submit any outstanding private treatment records. All obtained records should be associated with the evidentiary record. All attempts made must be documented, to include the unavailability of any identified records. 2. Please send the Veteran’s claims file to a VA examiner for an addendum opinion as to bilateral, lower extremity radiculopathy. To the extent possible, the examiner is requested to please opine as to the date of onset of the Veteran’s right and left lower extremity radiculopathy disability, as associated with the service-connected low back disability. Please specify which nerve roots were impacted at any point, to include the sciatic and femoral nerve. Please consider the evidence of record which supports the existence of radiculopathy of the lower extremities associated with the low back prior to 2016. Specifically, a March 2007 VA treatment record states chronic low back pain with radiation. A May 2009 private examiner stated the Veteran’s lumbar disc disease was extension and radiculopathy was present. An August 2012 private examiner also noted neuropathy in the lower extremities. 3. Please send the Veteran’s claims file to a VA examiner for an addendum opinion as to the left hip. To the extent possible, the examiner is requested to please opine as to the date of onset of the Veteran’s service-connected left hip strain as secondary to service-connected left knee disability. Please clarify, to the extent possible, whether prior to March 2016, the Veteran’s left hip pain was caused by the service-connected left hip strain secondary to service-connected left knee, or service-connected left, lower extremity radiculopathy, secondary to service-connected low back. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed psychiatric disability, to include unspecified depressive disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Please opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability, to include service-connected left knee and low back. Please consider the lay statements of record, scholarly articles submitted, and the February 2016 private examiner’s opinion, that the Veteran suffers from unspecified depressive disorder more likely than not with onset in military service, and aggravated by his service-connected left knee and low back. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of bilateral ankle disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Please opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Please consider the Veteran’s lay statements. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any migraine disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Please opine whether the headaches noted on the Veteran’s entrance examination was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. (Continued on the next page)   7. After the above is complete, readjudicate the Veteran’s claims, to include entitlement to an earlier effective date for TDIU and DEA. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev