Citation Nr: 20007409 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 19-09 650 DATE: January 30, 2020 ORDER Entitlement to an effective date prior to December 14, 2015 for entitlement to service connection for reactive airway disease is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to an effective date prior to December 14, 2015 for entitlement to service connection for reactive airway disease on the basis of clear and unmistakable error in an October 2010 rating decision is remanded. Entitlement an effective date prior to December 14, 2015 for entitlement to basic eligibility to dependents educational assistance is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for chronic fatigue is remanded. FINDINGS OF FACT 1. An October 2010 rating decision denied the Veteran’s claim for entitlement to service connection for reactive airway disease (RAD). The Veteran was notified of the decision in correspondence issued the same month. The Veteran did not appeal the decision and new evidence was not received within a year after the decision. Therefore, the decision is final. 2. Service connection for RAD is effective December 14, 2015, the date that VA received a claim to reopen entitlement to service connection for RAD. 3. The Veteran’s tinnitus was not present during active service or manifest to a compensable degree within one year of separation from service, and the most probative evidence establishes that the Veteran’s current tinnitus is not causally related to his active service or any incident therein, nor is it causally related to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to December 14, 2015 for the grant of service connection for RAD have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2002 to July 2003, and from April 2009 to June 2010. These matters come before the Board from a May 2016 rating decision and a February 2019 rating decision. The Board notes that the Veteran has asserted clear and unmistakable error (CUE) of the October 2010 rating decision denying entitlement to service connection for reactive airway disease (RAD). Such CUE challenges are not inextricably intertwined with the earlier effective date issue, which has been developed for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The outcome of the Veteran’s direct appeal of the effective date assigned for service connection for RAD is not dependent on the outcome of any request for revision of the earlier decision on the basis of CUE. An adjudication of his direct earlier effective appeal does not preclude a successful collateral attack on the earlier decision. See Canady v. Nicholson, 20 Vet. App. 393, 402 (2006) (which bifurcated and separately adjudicated the issues of entitlement to an earlier effective date and CUE). The issue of entitlement to an effective date prior to December 14, 2015 based on clear and unmistakable error in an October 2010 rating decision is addressed in the Remand section of this decision, below. Effective Date 1. Entitlement to an effective date prior to December 14, 2015 for entitlement to service connection for reactive airway disease VA regulations provide that 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) (2017). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (hereinafter “the Court”), however, has held that VA is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). VA law provides that the effective date for an award of disability compensation reopened claims shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits. 38 C.F.R. § 3.103(b) (2017). Notification for VA purposes is a written notice sent to the claimant’s last address of record. 38 C.F.R. § 3.1(q) (2017). If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title. 38 U.S.C. § 7105(c) (2012). There are, however, two exceptions to the rule of finality, the reopening of a claim based upon new and material evidence under 38 U.S.C. § 5108 and revision of a decision based upon clear and unmistakable error (CUE) under 38 U.S.C. § 5109A. See Cook v. Principi, 318 F.3d 1334, 1336 (Fed. Cir. 2002). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 C.F.R. § 3.156(a) (2017). An October 2010 rating decision denied the Veteran’s prior claim for entitlement to service connection RAD. The Veteran was notified of this decision on October 20, 2010. The Veteran did not appeal the decision and no new and material evidence was received within one year of the October 2010 rating decision; accordingly, the October 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2017). The Veteran contends, in essence, that an earlier date is warranted based upon CUE in the October 2010 rating decision. The issue of whether there is CUE in the October 2010 rating decision has been addressed in the introduction and remand sections of this decision, and will not be considered further as a basis for an earlier effective date prior to initial consideration of the CUE claim by the AOJ. The Veteran makes no allegation that he provided any document to VA prior to December 14, 2015 that should be considered as an application to reopen the previously denied claim. Based on the evidence, the Board finds that the October 2010 rating decision which denied entitlement to service connection for RAD is final and that service connection has been established from December 14, 2015, the date that correspondence to VA was received requesting that the previously denied claim be reopened. There is no evidence of any earlier claim to reopen and no present basis under applicable VA law for an effective date earlier than December 14, 2015, the date of claim. Therefore, entitlement to an earlier effective date prior to December 14, 2015 for the grant of service connection for RAD must be denied. The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. Pursuant to this authority, the Board finds that there is no legal basis by which an effective date for the grant of service connection for RAD earlier than December 14, 2015 can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400 (b)(2)(i). 2. Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. The Veteran has not alleged an incident of in-service noise exposure or that he has experienced symptoms of tinnitus since service. In January 2019, a VA examiner opined that the Veteran’s tinnitus is not at least as likely as not related to in-service noise exposure. The rationale was that the Veteran’s tinnitus is related to his adult onset otosclerosis. 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). Although the Veteran believes his tinnitus is related to an in-service injury, event, or disease and the record indicates the Veteran has medical training, the Veteran has not provided any statements or opinions linking his tinnitus to active duty service. Consequently, the Board gives more probative weight to the January 2019 VA opinion. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. REASONS FOR REMAND 1. Entitlement to an effective date prior to December 14, 2015 for reactive airway disease on the basis of clear and unmistakable error in a prior rating decision is remanded. In his April 2019 notice of disagreement, the Veteran raised the issue of clear and unmistakable error in the October 2010 rating decision which initially denied his claim for service connection for reactive airway disease. This theory of entitlement was not addressed by the RO in its subsequent statement of the case. Accordingly, remand for a statement of the case addressing the Veteran’s claim for entitlement to an effective date prior to December 14, 2015 for a grant of service connection for reactive airway disease is warranted. See 38 C.F.R. § 19.31; see also Manlicon v. West, 12 Vet. App. 238 (1999). 2. Entitlement an effective date prior to December 14, 2015 for entitlement to basic eligibility for dependents educational assistance is remanded. Because entitlement to an effective date prior to December 14, 2015 for entitlement to basic eligibility for dependents educational assistance is based on the date of receipt of a 100 percent disability rating for reactive airway disease and the issue of entitlement to an effective date prior to December 14, 2015 for reactive airway disease on the basis of CUE in an October 2010 rating decision is remanded herein, this issue is inextricably intertwined with the claim for CUE in the October 2010 rating decision; accordingly, the Board must defer adjudication of this issue. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). 3. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that he has sleep apnea related to his military service, to include his exposure to airborne toxins while deployed. Alternatively, he asserts his sleep apnea is related to his service-connected RAD. The Veteran was afforded VA examination in April 2016. The April 2016 examiner did not note a diagnosis of sleep apnea and, as such, opined that the Veteran did not have sleep apnea related to his military service. The Veteran stated on his October 2019 Form 9 that he now has a diagnosis of sleep apnea. The medical record is silent as to a diagnosis and so a request for the Veteran’s most recent medical records should be made to determine if the Veteran now has a diagnosis of sleep apnea. Additionally, since the April 2016 VA examination, the Veteran was service connected for RAD and has asserted that his sleep apnea may be related to this condition. In support of this assertion, the Veteran has submitted an article which discusses the relationship between respiratory conditions and sleep apnea. The Veteran should be afforded another VA examination to determine the nature and etiology of any diagnosed sleep apnea and to address the Veteran’s assertions that his sleep apnea is related to his service-connected RAD or to his exposure to airborne toxins while deployed. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 4. Entitlement to service connection for headaches is remanded. The Veteran contends that he has a headache condition related to his military service, to include exposure to airborne toxins while deployed and as related to his service-connected RAD. The record indicates the Veteran has reported chronic headaches since at least 2010. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The requirement that the evidence “indicates” that the Veteran’s disability “may” be associated with his service is a low threshold. Id. Thus, in light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s headache condition, to include whether the Veteran’s headache condition is related to service, to include his exposure to airborne toxins in-service or related to his service-connected RAD. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra. 5. Entitlement to service connection for chronic fatigue is remanded The Veteran’s claim for entitlement to service connection for chronic fatigue was remanded by the Board in an October 2019 Board decision. The record indicates that the Veteran was afforded a VA examination, but a supplemental statement of the case has yet to be issued. A supplemental statement of the case must be issued in this case. Manlicon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including airborne toxins or his service-connected RAD. The examiner must opine as to: (a.) whether it at least as likely as not (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. (b.) Whether it is as likely as not related to exposure to airborne toxins while deployed. (c.) whether it is at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated by a service-connected disability. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including, including airborne toxins or his service-connected RAD. The examiner must opine as to: (a.) whether it at least as likely as not (1) began during active service, or (2) was noted during service with continuity of the same symptomatology since service. (b.) 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. 3. Furnish the Veteran a statement of the case on the issue of CUE in the October 2010 rating decision which denied service connection for reactive airway disease. The Veteran and his representative must be informed that in order to perfect an appeal on this issue, he must timely file a substantive appeal following the issuance of the statement of the case. If the appeal is perfected, certify this matter to the Board. 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal taking into consideration all newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.