Citation Nr: 1821376 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-31 794A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the December 2011 VA Form 9 - Appeal to the Board of Veterans' Appeals was timely. 2. Entitlement to a rating in excess of 10 percent for service connected hypertension. 3. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, to include as secondary to a service connected disability. 4. Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION Veteran represented by: Non-Commissioned Officer Association WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from July 1989 to April 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2017 without his representative. A transcript of that hearing is of record. The issue of an increased rating for a service connected headache disability has been raised by the record in a July 7, 2017, statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for OSA is addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a July 2009 rating decision, the RO granted service connection for erectile dysfunction at a noncompensable rate effective March 22, 2009, granted an increased rating of 10 percent for a left knee disability, denied an increased rating for a right knee disability, and denied service connection for a lumbar spine disorder; the Veteran disagreed with the decision and a statement of the case (SOC) was issued on September 28, 2011. 2. The Veteran's hypertension requires continuous medication, but has not shown diastolic readings predominantly 110 or more nor systolic readings predominantly 200 or more. 3. Competent and credible medical and lay evidence makes it at least as likely as not (50 percent or greater) that the Veteran's PTSD is due to his active service. CONCLUSIONS OF LAW 1. A timely substantive appeal regarding the July 2009 rating decision and the September 2011 SOC was not received and that rating decision is final. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.300 to 20.306, 20.1103 (2017). 2. The criteria for a disability rating in excess of 10 percent for hypertension are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.31, 4.104, Diagnostic Code 7101 (2017). 3. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, 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). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a hearing before the Board in November 2017. The Veteran was also provided VA examinations and neither he, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Timeliness of VA Form 9 Per VA regulation and as applicable to this case, a substantive appeal consists of a properly completed VA Form 9 - Appeal to Board of Veterans' Appeals or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). In a July 2009 rating decision, the RO granted service connection for erectile dysfunction at a noncompensable rate effective March 22, 2009, granted an increased rating of 10 percent for a left knee disability, denied an increased rating for a right knee disability, and denied service connection for a lumbar spine disorder. The Veteran was notified of this decision by a letter dated August 3, 2009. The Veteran filed a timely notice of disagreement (NOD) in August 2009, and was subsequently issued a SOC on September 28, 2011. The Veteran called VA on December 2, 2011, but did not mention this appeal. The next submission from the Veteran, which included a VA Form 9, was date stamped as received by VA on December 7, 2011, which was after the filing deadline for perfecting the appeal had passed. See 38 C.F.R. § 20.302. When, as here, a postmark is not of record, the postmark will be presumed to be 5 days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305. In this case, applying the "mailbox" rule noted above, the Form 9 was still not timely. The Veteran reported and testified that he mailed his VA Form 9 just before Thanksgiving, or approximately around November 24, 2011, and VA should have received his VA Form 9 prior to December 7, 2011. He testified that he mailed the VA Form 9 certified mail, but no longer had the tracking number or signature card. He testified that the United States Post Office no longer had the information. He has provided no evidence of the mailing date, the date of receipt of his certified submission, or a signature card of his certified submission. As such, there is no evidence, beyond the Veteran's assertion, to show that the VA Form 9 was received by the RO prior to December 7, 2011. The Veteran essentially asserted that the VA Form 9 was mishandled by the United States Post Office or VA. However, there is a presumption of regularity in the law to the effect that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the RO level, such as in the instant case. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Accordingly, the Board finds that the assertion of this Veteran alone is not sufficient to rebut the presumption of regularity as to the handling of his VA Form 9 by the United States Post Office and/or VA. As such, the Board finds that the VA Form 9 was not received by VA until December 7, 2011. The record does reflect that the Veteran's substantive appeal was dated November 21, 2011, but was not time-stamped as received by VA until December 7, 2011. No written document that could constitute a VA Form 9 was received within 60 days of the date of the September 28, 2011, SOC was sent to the Veteran, or within the remainder of the one-year period from the date of the August 3, 2009, letter notifying him of the rating decision. Accordingly, the Veteran's December 2011 VA Form 9 was not timely filed. As such, the July 2009 rating decision is final. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed an increased claim rating for his hypertension in October 2012, which was denied by a November 2013 rating decision. The Veteran asserts that he is entitled to a higher rating. At the November 2017 Board hearing, the Veteran testified that he thought that the requirement of having blood pressure of 200/110 was too high for a rating of 20 percent. However, the merits of such an argument exceed the authority of the Board, as the role of the Board is to apply VA regulations and applicable case law and not to set policy. The Veteran's hypertension is evaluated under Diagnostic Code 7101. A 10 percent rating is assigned for diastolic pressure predominately 100 or more or systolic pressure predominantly 160 or more, or an individual with a history of diastolic blood pressure predominately 100 or more requiring continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominately 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. A 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a systolic blood pressure of less than 90 mm. Id. The Veteran's medical records show he is prescribed medications to control his hypertension. Treatment visits show he had a single blood pressure reading of 207/107 in March 2015. However, blood pressure readings the same day were 133/81, 126/79, 130/83, and 155/89. The record did not show diastolic readings of 110 or more. As such, the Veteran's treatment record does not show he has diastolic pressure predominately 200 or more or systolic pressure predominately 110 or more. In October 2013, the Veteran was afforded a VA examination. The examiner indicated that the Veteran took continuous medications for his hypertension. On examination, the Veteran's blood pressure readings were 140/100, 142/98, and 142/100. In August 2014, the Veteran was afforded a VA examination. The examiner indicated that the Veteran took continuous medications for his hypertension. On examination, the Veteran's blood pressure readings were 120/86, 120/88, and 120/88. Based on a review of the above evidence, the Board concludes that entitlement to a disability evaluation in excess of 10 percent is not warranted. In order to receive a 20 percent evaluation or higher, the Veteran must have a diastolic pressure predominately 110 or more or systolic pressure predominantly 200 or more. Although the medical evidence demonstrates that he had a single systolic reading above 200 in March 2015, his systolic readings have consistently been well-below 200 at all other times. The medical evidence does not demonstrate that he has had any recorded diastolic readings above 110. Accordingly, the Board finds that the weight of the evidence is against the claim and entitlement to a rating in excess of 10 percent for hypertension is denied. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically 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, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. In October 2012, the Veteran filed his service connection claim for PTSD, which he asserts is due to his active service. His STRs show in July 1990, he experienced a traumatic head injury that has been granted service connection. In December 2017, the Veteran's underwent a private consultation with Veronda Ford, LMSW, MPH, Ph.D(c). After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, Ms. Ford diagnosed the Veteran with PTSD and opined that the Veteran's PTSD was more likely than not due to his active service and was a direct result of his traumatic head injury. Although other medical opinions have reached the opposite conclusion regarding the Veteran's acquired psychiatric disability , the evidence for and against the Veteran's claim is in at least relative equipoise. As such, the criteria for service connection for an acquired psychiatric disability have been met and the Veteran's claim is granted. ORDER The December 2011 VA Form 9 was not timely. A rating in excess of 10 percent for hypertension is denied. Service connection for an acquired psychiatric disability is granted. REMAND Regarding the Veteran's service connection claim for OSA, he asserts that his OSA is due to his active service. Approximately 13 years after separating from service in February 2010, he was diagnosed with OSA. At the November 2017 Board hearing, he testified that he was exposed to chemicals during his active service, which he believes resulted in his current diagnosis of OSA. His wife testified that the Veteran snores and stops breathing during his sleep. Having reviewed the evidence, a VA examination with an opinion on etiology for the Veteran's OSA is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the etiology of his obstructive sleep apnea (OSA). The examiner should opine as to whether is it at least as likely as not (50 percent or greater) that OSA either began during or was otherwise caused by the Veteran's active service. Why or why not? The examiner should address the reports of the Veteran and his wife regarding OSA symptoms as voiced at his Board hearing in November 2017. 2. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs