Citation Nr: 20049731
Decision Date: 07/27/20	Archive Date: 07/27/20

DOCKET NO. 19-16 433
DATE: July 27, 2020

ORDER

Service connection for lumps under the right and left arms is denied.

Service connection for swollen legs, to include as secondary to service-connected sarcoidosis with pulmonary involvement, is denied.

Service connection for a low back disorder is denied.

Service connection for sleep apnea as secondary to service-connected sarcoidosis with pulmonary involvement is denied.

An effective date earlier than September 15, 2016 for the award of secondary service connection for a depressive disorder is denied. 

An increased rating greater than 60 percent for sarcoidosis with pulmonary involvement is denied.

An effective date earlier than September 15, 2016 for the assignment of a 60 percent rating for sarcoidosis with pulmonary involvement is denied. 

Special monthly compensation (SMC) based on housebound status under 38 U.S.C. § 1114(s) is granted. 

Special monthly compensation (SMC) on account of the need for regular aid and attendance under 38 U.S.C. § 1114(l) is granted.

Specially adapted housing (SAH) is denied.

Special home adaptation (SHA) is denied.

Entitlement to additional compensation benefits for a dependent child (C.T.) for the time period from April [REDACTED], 1982 to September 28, 1984, is denied. 

REMANDED

Service connection for a left shoulder disorder, to include as secondary to service-connected sarcoidosis with pulmonary involvement, is remanded.

FINDINGS OF FACT

1. The Veteran does not have a current disability for “lumps” under the arms. 

2. The Veteran’s current swollen legs disability is associated with his nonservice-connected high blood pressure. 

3. The preponderance of the evidence is against finding that the Veteran’s current low back disorder began during active service or is otherwise related to an in-service injury, event, or disease.

4. The Veteran’s sleep apnea was not caused or aggravated by his service-connected sarcoidosis with pulmonary involvement.

5. Prior to September 15, 2016, the record contains neither a statement nor communication from the Veteran or his representative, nor any medical evidence, that can reasonably be construed as constituting an earlier claim for service connection or secondary service connection for a depressive disorder.  

6. The Veteran’s sarcoidosis with pulmonary involvement is not productive of cor pulmonale (right heart failure), or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment; FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; the requirement for outpatient oxygen therapy.

7. With regard to the effective date for the assignment of the Veteran’s 60 percent rating for sarcoidosis with pulmonary involvement, this 60 percent rating is not factually ascertainable within the one-year period before the receipt of the September 15, 2016 formal claim for an increased rating.

8. With regard to SMC housebound benefits, the Veteran does not have a single service-connected disability rated as 100 percent disabling.  However, the Veteran’s TDIU rating could be awarded from a single service-connected disability (his eye / vision disability).  Moreover, the Veteran had additional service-connected disabilities independently ratable at 60 percent or more when combined, separate and distinct from the eye / vision disability associated with TDIU and involving different anatomical segments or bodily systems.  This meets the statutory criteria for housebound benefits.

9. With regard to SMC aid and attendance (A&A) benefits, the Veteran is entitled to SMC at the L-rate based on the need for aid and attendance (A&A) of another person, due solely to the impact of his service-connected bilateral eye / vision disability.  

10. With regard to specially adapted housing, although the Veteran has service-connected permanent and total (P&T) disabilities, these disabilities do not so affect the functions of balance or propulsion as to “preclude locomotion” without the aid of the “regular and constant use” of a wheelchair, braces, crutches, or canes as a normal mode of locomotion.  He also fails to meet any of the other potential criteria for this benefit.

11. With regard to a special home adaptation grant, the Veteran fails to meet any of the criteria for this benefit such as service-connected loss or loss of use of both hands; residuals of an “inhalation injury”; burns of the trunk or extremities; or left eye blindness.  

12. With regard to additional compensation for a dependent child (C.T.) for the time period from April [REDACTED], 1982 to September 28, 1984, the Veteran “abandoned” his January 9, 1985 Declaration of Marital Status (VA Form 21-686c) by failing to respond to VA’s request for additional dependency information for C.T. within one year of the request.

CONCLUSIONS OF LAW

1. The criteria for service connection for lumps under the arms have not been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  

2. The criteria for service connection and secondary service connection for swollen legs have not been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019).  

3. The criteria for service connection for a low back disorder have not been met.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019).

4. The criteria for service connection for sleep apnea as secondary to service-connected sarcoidosis with pulmonary involvement have not been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 

5. The requirements have not been met for an effective date earlier than September 15, 2016, for the award of secondary service connection for a depressive disorder.  38 U.S.C. §§ 5101(a), 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.157, 3.160(c), 3.310, 3.400 (2014).

6. The criteria have not been met for an increased rating greater than 60 percent for sarcoidosis with pulmonary involvement.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.27, 4.96, 4.97, Diagnostic Code 6846-6600 (2019).  

7. The requirements have not been met for an effective date earlier than September 15, 2016, for the assignment of a 60 percent rating for sarcoidosis with pulmonary involvement.  38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.160, 3.400(o), 4.97, Diagnostic Code 6846-6600.  

8. The criteria for SMC based on housebound status have been met.  38 U.S.C. §§ 1114(s), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(i), 4.16(a), 4.25 (2019); Bradley v. Peake, 22 Vet. App. 280, 293 (2008).  

9. The criteria for entitlement to SMC benefits at the L-rate on account of the need for regular aid and attendance have been met.  38 U.S.C. §§ 1114(l), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.352(a) (2019).

10. The criteria have not been met for specially adapted housing (SAH) benefits.  38 U.S.C. §§ 2101(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.809 (2019).

11. The criteria have not been met for a special home adaptation (SHA) grant.  38 U.S.C. §§ 2101(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.809, 3.809a (2019).

12. The criteria have not been met for additional compensation benefits for a dependent child (C.T.) for the time period from April [REDACTED], 1982 to September 28, 1984.  38 U.S.C. §§ 101(4)(A), 1115, 5103(a), 5110(f), 5124(a)-(c); 38 C.F.R. §§ 3.4(b)(2), 3.57(a), 3.158, 3.204, 3.209, 3.210, 3.401.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from August 1977 to February 1980 in the U.S. Army.  

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2016, June 2017, and February 2018 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

In an April 2018 statement from the Veteran, it appears the Veteran is attempting to raise the issue of clear and unmistakable error (CUE) in an earlier September 1984 rating decision.  This earlier rating decision reduced the Veteran’s service-connected sarcoidosis disability from 70 percent to 0 percent, effective September 28, 1984.  The Veteran requests a reinstatement of the 70 percent rating for sarcoidosis beginning on September 28, 1984.  Regardless, the Veteran and his Agent are advised that it is only appropriate to refer to a communication dated on or after March 24, 2015 as a “claim” if the communication has been received on a formal application form prescribed by the Secretary (e.g., a VA Form 21-526).  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160 (effective March 24, 2015).  Therefore, if the Veteran wishes to pursue a motion for CUE in the September 1984 rating decision, he must file it on the appropriate form.  

I.  VA’s Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019).  The AOJ sent the Veteran a compliant VCAA notice letter (dated in December 2017), addressing the criteria necessary to establish entitlement to service connection, secondary service connection, an increased rating, an earlier effective date, specially adapted housing, and SMC. 

In any event, neither the Veteran nor his Agent has raised any issues with the duty to notify or duty to assist for the various issues on appeal.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

II.  Service Connection

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) the existence of 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 disease or injury incurred or aggravated during service — the “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record.  Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020).  Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007).  The Federal Circuit has also clarified that lay evidence can be competent for the diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection.  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, on either a direct or secondary basis, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

	

A.  Lumps on the Right and Left Arms

The Veteran contends that he has a current disability of “lumps” under the right and left arms, which is related to his period of active duty service from 1977 to 1980.  The Veteran has provided no further lay description of this alleged disability or the circumstances of its onset.  See September 15, 2016 Application for Compensation (VA Form 21-526EZ); January 2017 NOD (VA Form 21-0958).  

At the outset, the alleged disability of “lumps” under the right and left arms is not an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service at 38 C.F.R. § 3.303(b) do not apply here.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).  Instead, 38 C.F.R. § 3.303(a) and (d) apply.  In this regard, under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In any event, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

However, more recently, the Federal Circuit Court provided a more definitive answer as to what constitutes a “disability” under VA law.  The Federal Circuit held that where pain causes functional impairment, a “disability” for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology.  Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  The Federal Circuit explained that a "disability" under 38 U.S.C. § 1110 (or § 1131) refers to the functional impairment in earning capacity, not the underlying cause of said disability.  Id. at 1363.  The Federal Circuit also noted that 38 C.F.R. § 4.10 defines the term “functional impairment” as the inability of the body or a part of it "'to function under the ordinary conditions of daily life including employment’” Id.  

However, the Federal Circuit in Saunders limited its holding, by stating that a claimant’s report of “subjective” pain in and of itself will not establish a current disability.  Id. at 1367.  In other words, a claimant cannot demonstrate service connection simply by asserting subjective pain.  Id.  Rather, a claimant will need to show that his or her pain reaches the level of functional impairment of earning capacity.  Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain.  The Court’s holding in Saunders is supported by the public policy behind veterans’ compensation – i.e., to compensate veterans whose ability to earn a living is impaired as a result of their military service.  Id. 

The Saunders holding is also supported by VA regulation - 38 C.F.R. § 4.1 (the term disability is described in terms of "the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations").  See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (citing with approval VA's definition of "disability" in 38 C.F.R. § 4.1).

In short, according to Saunders, the mere fact of a veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he or she has met the current disability requirement for VA compensation purposes.  Rather, current functional impairment of earning capacity is required to meet the standard of a current disability.

Upon review of the evidence of record, service connection for “lumps” under the right and left arms is denied. 

The most probative evidence of record weighs against the existence of a current disability for “lumps” under the right and left arms.  38 U.S.C. § 1131; 38 C.F.R. § 3.303; Saunders, 886 F.3d 1363-68.  In making this determination, the Board has considered that the requirement of a current disability is fulfilled if a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Moreover, the Court has held that a diagnosis dated prior to the filing of a claim is relevant evidence in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013).  The Court in Romanowsky added that a determination that a diagnosis is “sufficiently proximate to the filing of a claim so as to constitute evidence of a ‘current diagnosis’ is a factual finding to be made by the Board in the first instance.” Id. at 294.  Thus, the Board has considered all the evidence in record, including the Veteran’s service treatment records (STRs) dated from 1977 to 1980, for any evidence of a current disability for “lumps” under the right and left arms.

STRs dated from 1977 to 1980 are negative for any complaints, treatment, or diagnosis of lumps under either arm.  STRs also failed to document any specific injury or incident or event related to the arms.  Post-service, from 1980 to the present, the clinical evidence of record is also negative for any complaints, treatment, or diagnosis of lumps under either arm.  The Board has carefully reviewed private treatment records dated from the 1980s to the 2000s.  The Board has also carefully reviewed the Veteran’s VA treatment records dated from 1980 to 2018.  Both private and VA medical records during these timeframes are negative for any complaints, treatment, or diagnosis of lumps under either arm, as are VA examinations of record.  Significantly, there is also no evidence in the clinical records of functional impairment in earning capacity due to lumps under the arms.  Simply stated, no medical professional in the record has described the Veteran having a disability associated with lumps under the arms.  

With regard to lay evidence, the Veteran contends that he has a current disability of “lumps” under the right and left arms, which is related to his period of active duty service from 1977 to 1980.  See September 15, 2016 Application for Compensation (VA Form 21-526EZ); January 2017 NOD (VA Form 21-0958).  However, the Veteran has provided no further lay description of this alleged disability or the circumstances of its onset.  The Court recently reaffirmed that the duty to assist a claimant is not a one-way street.  Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019).  The duty to assist "does not encompass 'a duty to prove a claim with the claimant only in a passive role.'"  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).  The Board has also considered the Veteran’s general averments that he is entitled to service connection for lumps under his arms.  The Veteran is competent to report lumps under his arms, as this type of symptomatology can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377.  However, the Board must then determine if these lay assertions are credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  Here, the Veteran’s subjective assertions are outweighed by the in-service and post-service clinical evidence of record spanning over 40 years.  In this regard, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

The Board may weigh the absence of contemporary medical evidence against a claimant’s lay statements.  Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buchanan v. Nicholson, 451 F.3d 1331, 36-37 (Fed. Cir. 2006).  However, in order to do so, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.  Horn v. Shinseki, 25 Vet. App. 231, 239 (2012).  The absence of a record of an event which would ordinarily have been recorded gives rise to a legitimate negative inference that the event did not occur.  AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013).  

In this regard, the Veteran sought VA and private treatment in the record for a variety of conditions for close to 40 years – sarcoidosis with pulmonary involvement, lung nodules, genitourinary conditions, low back, shoulder, and cervical spine disorders, neuropathy, glaucoma and various eye disabilities, allergic rhinitis, sinusitis, sleep apnea, GERD, callouses, headaches, depression, and arthritis of the hands and knees and ankles, etc.  However, he never reported any lumps under the arms to any military or VA or private providers in the record, throughout the 1970s, 1980s, 1990s, and 2000s.  Thus, the Veteran’s lay assertions regarding the existence of such a disability is inconsistent with past and current clinical records in which he frequently reported other existing medical conditions without mentioning any problems related to lumps under his arms.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (when a medical condition or symptom has not been noted in the medical records, the Board may not consider that as negative evidence unless it is the sort of condition or symptom that would normally be noted or reported).  If the Veteran was experiencing signs and symptoms of such a condition from the time of his service, common sense dictates it is highly unlikely he would fail to mention his alleged lumps under the arms on all of these occasions.  Based upon the language and context of his STRs and VA and private treatment records and VA examinations, the Board finds that the Veteran was reporting all the disabilities /medical conditions / symptoms that he was experiencing throughout the years.  Thus, his failure to report any complaints for lumps under the arms during hundreds of instances of medical treatment over the years is persuasive evidence that he was not then experiencing any relevant lumps under the arms, which outweighs his present recollection to the contrary.  

In short, the Veteran’s subjective assertions of a current disability of lumps under the arms are outweighed by the more probative clinical STRs and post-service medical evidence of record discussed above.  English, 30 Vet. App. at 352-53. These clinical records over a 40-year time period are extensive and detailed.  They provide strong evidence against the claim, and do not comport with the Veteran’s lay assertions regarding the existence of current disability for lumps under the arms.  There is no evidence of functional impairment in earning capacity from such a disability.  There is no evidence of interference with employment or other normal activities from such a condition.  While Saunders focused exclusively on pain unattributed to a diagnosis or an identifiable underlying malady or condition, the same reasoning could apply to this Veteran’s particular report of “lumps” under the arms. 

Once again, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997).  Absent probative or reliable evidence of pain or other symptoms from any current disability for lumps under the arms causing a functional impairment in earning capacity, service connection for this issue cannot be granted in the present case.  Saunders, 886 F.3d at 1367-68.  

The Board acknowledges a March 2017 VA neurology consult report documents complaints of left arm “swelling” in the context of his left shoulder pain radiating to his left elbow.  However, this is encompassed within his separate service connection claim for a left shoulder disorder, which is being remanded in the present Board decision, as discussed in the remand section below.

The Board also acknowledges that a previous, final August 2013 Board decision denied the Veteran service connection and secondary service connection for arthritis, pain, and swelling of the bilateral hands.  This August 2013 Board decision was not appealed by the Veteran.  On this point, the Federal Circuit Court has held that new claims that are based on distinctly and differently diagnosed diseases or injuries than a previously denied claim must be considered independently, despite similar symptoms.  Therefore, new and material evidence is not required in such cases.  See Boggs v. Peake, 520 F.3d 1330, 1335-36 (Fed. Cir. 2008).  See also Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) ((a newly diagnosed psychiatric disorder (e.g., PTSD), even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered).  

In Velez v. Shinseki, 23 Vet. App. 199 (2009), the Court looked to three factors to distinguish a new claim from a petition to reopen: 1) what symptoms were previously used in describing the prior claim, 2) what the medical evidence showed at the time of the prior denials, and 3) how broadly the AOJ adjudicated the scope of the prior claim.  In reviewing the earlier August 2013 Board decision, the Board has determined that a de novo service connection analysis is proper for the current “lumps” under the arms issue on appeal.  See Velez, 23 Vet. App. at 204 (when determining whether a new and material evidence analysis is required, the focus VA’s analysis must be on whether the evidence presented truly amounts to a new claim “based upon distinctly diagnosed diseases or injuries,” or whether it is evidence tending to substantiate an element of the previously adjudicated matter).  

When a veteran files a claim, he or she is generally seeking service connection for disabling symptoms, regardless of how those symptoms are diagnosed.  A claimant may satisfy the requirement to “identify the benefit sought” in their claim “by referring to a body part or system that is disabled or by describing symptoms of the disability.”  Brokowski v. Shinseki, 23 Vet. App. 79, 87 (2009).  But a claim for disability compensation is not always limited to the specific disability listed on the application for compensation.  Clemons, 23 Vet. App. at 9.  Here, when the Veteran filed his current September 15, 2016 Application for Compensation (VA Form 21-526EZ) and January 2017 NOD (VA Form 21-0958), he referenced “lumps” under the “arms.”  He did not mention or describe his previously adjudicated disability to his “hands.”  He also did not describe swelling, pain, or arthritis in his current claim.  In addition, his hands and arms are separate body parts.  Moreover, neither the AOJ nor the Board previously adjudicated a disability to the “arms.”  Also, “lumps” were not discussed by the AOJ or Board in previously adjudicating service connection for the hands, and no “lumps” were mentioned in the clinical evidence of record at the time of the earlier August 2013 Board decision.  See Velez, 23 Vet. App. at 204.  Thus, the current claim for “lumps” under the arms constitutes a new and distinct claim from the previous bilateral hand disability that was finally adjudicated in the earlier August 2013 Board decision.  Boggs, 520 F.3d at 1337.  It follows that a new and material evidence analysis is not warranted for this particular issue.  

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claim for lumps under the arms.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The claim is denied. 

B.  Swollen Legs

The Veteran contends that he has a current disability involving swelling to the entirety of both legs, which should be service-connected on either a direct or secondary basis.  As to direct service connection, the Veteran has provided no description of the circumstances of its onset during active duty for both legs.  As to secondary service connection, he contends that the swelling of his legs is the result of his service-connected sarcoidosis with pulmonary involvement.  He explains that the elevated white blood cells from sarcoidosis have caused brittle bone and breakage at any time.  See May 2016 statement of Agent; September 15, 2016 Application for Compensation (VA Form 21-526EZ); January 2017 NOD (VA Form 21-0958).  

At the outset, with regard to the legs, the AOJ has already granted service-connection for right knee arthritis / right leg swelling, assigning a 10 percent rating from August 7, 2006.  The AOJ has also granted service connection for a right foot callus, assigning a 0 percent rating from August 7, 2006.

At the outset, with regard to the legs, the Board in an earlier August 2013 Board decision denied service connection for bilateral flat fleet (with consideration of bilateral foot swelling and arthritis).  In the same August 2013 Board decision, the Board denied service connection and secondary service connection for the left knee (with consideration of left knee effusion, swelling, and arthritis).  In a latter October 2017 Board decision, the Board denied service connection and secondary service connection for the bilateral ankles (osteoarthritis and sprains and swelling) and for yet another bilateral foot disability (lesions on the feet).   

With regard to the instant claim for a current disability involving swelling to the entirety of both legs, it appears this constitutes a new and distinct claim from the previous lower extremities disabilities that were finally adjudicated in the earlier August 2013 and October 2017 Board decisions and the rating decisions that granted right knee and right foot disabilities.  See Boggs, 520 F.3d at 1337; Velez, 23 Vet. App. at 204.  It follows that a new and material evidence analysis is not warranted.  In fact, the Veteran’s Agent has never alleged a new and material evidence analysis is warranted, as his current claim is separate and distinct from his earlier claims for the lower extremities.   

Upon review of the evidence of record, service connection for swollen legs, on either a direct or secondary basis, is denied. 

With regard to the existence of a current disability, an April 2018 VA nursing outpatient note documented the Veteran’s report of bilateral lower leg swelling with pain at a 4/10 level.  As such, it appears a current disability exists for this condition.  However, under the “active outpatient medications” list in VA treatment records dated in 2017 and 2018, an intercurrent, nonservice-connected cause was repeatedly listed as the source of the Veteran’s “leg swelling.”  That is, the Veteran was instructed to take a furosemide 40mg tablet by mouth every day before breakfast as needed on an empty stomach for “fluid / high blood pressure leg swelling.”  The Board emphasizes that the Veteran’s high blood pressure identified as the associated cause of his leg swelling is a nonservice-connected disability.  This VA clinical evidence dated multiple times in 2017 and 2018 is probative medical evidence of record clearly weighing against a nexus between the Veteran’s present swelling of the legs and his period of military service.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Moreover, STRs dated from 1977 to 1980 are negative for any complaint, treatment, or diagnosis of swelling of the legs.  In fact, at a February 1980 STR report of medical history at separation, the Veteran specifically denied a history of “swollen” joints.  Finally, there is no probative evidence of record that the Veteran’s service-connected sarcoidosis with pulmonary involvement caused or worsened his swollen legs condition.  See 38 C.F.R. § 3.310(a), (b).  As such, no secondary relationship exists between his swollen legs and a service-connected disability.  

Accordingly, the preponderance of the evidence is against service connection for swollen legs, on either a direct or secondary basis.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The claim is denied. 

C.  Low Back

The Veteran contends that he has a current low back disability that is related to his period of military service in the Army from 1977 to 1980.  As to direct service connection, the Veteran has provided no description of the circumstances of the onset of the low back disability during active duty or thereafter.  The Veteran has never alleged secondary service connection for the low back.  See September 15, 2016 Application for Compensation (VA Form 21-526EZ); January 2017 NOD (VA Form 21-0958).  

Upon review of the evidence of record, service connection for a low back disorder is denied. 

At the outset, under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), or “continuity of symptoms” of such a disease after service, the disease shall be presumed to have been incurred in service.  Walker v. Shinseki, 708 F.3d 1331, 1335-37 (Fed. Cir. 2013).  The Veteran’s degenerative disc disease (arthritis) of the low back would be an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would apply to the Veteran’s low back problems.  Walker, 708 F.3d at 1338-39.  Service connection for an enumerated “chronic disease” such as arthritis listed under 38 C.F.R. § 3.309(a) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C. § 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997).  In the present case, there is probative evidence that the Veteran meets the threshold criterion for service connection of a current low back disability.  Boyer, 210 F.3d at 1353.  Specifically, VA treatment records dated from 2016 to 2018 list an active problem of chronic low back pain with degenerative disc disease (DDD).  In February 2012 the Veteran underwent a laminectomy for the lumbar spine at a private medical facility.  Thus, the Veteran clearly has a current low back disorder, and the remaining question is whether his low back disorder manifested in service, within one year of service, or is otherwise related thereto.

STRs dated from 1977 to 1980 are negative for any complaints, treatment, or diagnosis of a low back disorder.  At his February 1980 STR separation examination, his spine was normal.  At his February 1980 STR report of medical history at separation, the Veteran denied a history of a back brace, recurrent back pain, swollen or painful joints, arthritis, bone or joint deformities, or neuritis.  In fact, neither the Veteran nor his Agent has alleged in-service symptoms or treatment for a low back disorder.  Thus, the Veteran’s STRs provide no evidence in support of the low back claim.  

Post-service, there is no probative evidence of low back arthritis at a 10 percent level within one year after service in 1980 or 1981.  Thus, the Veteran is not entitled to service connection for low back arthritis on a presumptive basis.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-37.  In fact, December 1980 VA X-rays of the lumbar spine / low back were normal.  That is, this December 1980 X-ray report indicated that examination of the lumbar spine in AP and lateral views showed no fracture, spondylolisthesis, or significant congenital defect.  All intervertebral spaces were well preserved.  No arthritic changes were noted.  There was a normal lordotic curve and lumbo-sacral angle.  The apophyseal joints were normal.

Post-service, regarding the third element of service connection, or nexus through continuity of symptomatology under 38 C.F.R. § 3.303(b), the Veteran does not assert, and the clinical evidence of record does not establish, continuous, ongoing symptoms of a low back disorder after his separation from service in 1980.  See 38 C.F.R. § 3.303(b); Walker, 708 F.3d 1335-1337.  In making this determination, the Board has considered that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991).  The mere absence of medical records does not contradict a Veteran’s statements about his symptom history.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  But here, the Veteran’s lack of description for his symptom history is consistent with what the clinical evidence of record describes.  A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

In this regard, post-service, VA examinations dated in April 1981 and October 1984 revealed normal musculoskeletal and neurological systems with no complaints or functional deficits for the low back.  VA treatment records dated in the 1980s and 1990s made no mention of low back pain.  The earliest reported history of the onset of low back pain is sometime in the early 2000s, over 20 years after separation from service.  That is, an April 2018 VA community outpatient clinic general note documented the Veteran estimates he has been on narcotics for low back pain for 10-15 years (since the early 2000s).  All of this weighs heavily against his claim.  

Post-service, with regard to a nexus, there is no probative medical evidence of record linking his current arthritis / degenerative disc disease of the low back with his period of service in the Army.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a), (d).  Absent such evidence of a nexus, service connection is not in order for the Veteran’s low back.  In fact, there is clinical evidence discussing a post-service intercurrent low back injury decades after his separation from service.  See 38 C.F.R. § 3.303(b).  Specifically, VA primary care notes dated in August 2012, March 2013, July 2014, January 2015, July 2015, August 2016, and March 2017 indicate that the Veteran required lumbar spine surgery in February 2012 after he had lifted a heavy object at work and injured his low back.  Moreover, a January 2015 VA orthopedic surgery consult recorded long-standing hydrocodone treatment because of back pain, which began as a result of lifting a heavy object at work, with the necessity of a subsequent surgery in February 2012.  Importantly, the Veteran has not submitted any contrary medical nexus opinion of record with regard to his low back.  This evidence in support of an intercurrent post-service cause of his low back problems weighs heavily against the service connection claim. 

With regard to lay evidence of a nexus between the Veteran’s current low back disorder to his military service, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology.  Davidson, 581 F.3d at 1316.  The Veteran is competent to report any symptoms of his low back pain during and after service.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  However, in the present case, the Veteran has not made any specific allegation of in-service low back symptoms or ongoing or continuing low back symptoms in the years immediately after separation from service in 1980.  Moreover, neither he nor his Agent has the medical training or expertise for offering a medical nexus opinion that his current low back DDD / arthritis developed over time due to any incident or event or disease from his military service.  See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377.  That is, “[a]lthough lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the development of DDD / arthritis of the low back due to an injury or event or disease during military service decades earlier falls outside the realm of common knowledge of a lay person.  See again Jandreau, 492 F.3d at 1377 n.4 (lay persons are not competent to diagnose cancer).”  Moreover, no medical professional of record has submitted a written opinion with a rationale opining that the Veteran’s current low back disorder is somehow related to his period of military service from 1977 to 1980.  Instead, there is evidence of a post-service intercurrent cause of his low back problems.  The Board has found the Veteran’s nonspecific lay assertions regarding the etiology of his low back disorder to be less persuasive than the post-service medical evidence of record.  

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claim for a low back disorder.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

D.  Secondary Service Connection (SSC) for Sleep Apnea

The Veteran asserts his sleep apnea is secondary to his service-connected sarcoidosis with pulmonary involvement.  However, neither the Veteran nor his Agent has provided any argument as to why there is a secondary relationship between these two disabilities.  See December 8, 2017 Application for Compensation (VA Form 21-526EZ); March 2018 NOD (VA Form 21-0958).

At present, the Veteran is service connected for the underlying disability - sarcoidosis with pulmonary involvement, with a 60 percent rating in effect since September 15, 2016.  He has been service-connected for this disability since October 18, 1991.  

The existence of a current sleep apnea disability is undisputed.  A September 2016 VA pulmonary consult stated that by the Veteran’s reported history, he likely has significant sleep apnea.  An August 2017 VA sleep medicine note and polysomnography (sleep study) diagnosed the Veteran with “severe” obstructive sleep apnea with an apnea-hypopnea index of 39 and significant oxygen desaturation going as far down as 65 percent.  The Veteran was advised to lose weight.  VA treatment records dated in 2017 to 2018 document follow-up for his “severe” obstructive sleep apnea, for which he uses a CPAP machine.  As such, the Veteran clearly meets this threshold criterion for service connection of a current disability. 

Initially, there is no allegation or evidence of record that his current sleep apnea disability began during or is directly related to his active duty service in the Army from 1977 to 1980.  Claims which have no support in the record need not be considered by the Board, as the Board is not obligated to consider “all possible” substantive theories of recovery.  That is, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.  Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009).  Thus, service connection on a direct basis will not be considered here.  

A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.  Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis).

Moreover, secondary service connection may also be established, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  

A VA medical opinion regarding both the causation and aggravation facets of a secondary service connection claim must be provided in a secondary service connection claim.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)).  Moreover, when addressing secondary service connection, a VA medical opinion should not combine causation and aggravation; separate findings and rationale should be provided for each one.  Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018).

In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

Upon review of the evidence of record, secondary service connection for sleep apnea is denied.  

With regard to secondary service connection, the Board finds there is simply no probative evidence of record that the Veteran’s service-connected sarcoidosis with pulmonary involvement caused or aggravated his current sleep apnea disability.  38 C.F.R. § 3.310(a), (b).  No medical professional of record has provided an opinion to support this theory of secondary service connection.  

More significantly, there is strong medical evidence weighing against a finding of secondary service connection.  38 C.F.R. § 3.310(a), (b); Atencio, 30 Vet. App. at 90-91.  A January 2018 VA sleep apnea examiner acknowledged the Veteran’s complex medical history involving sarcoidosis and his “extensive” problem list.  However, the VA examiner opined that the Veteran’s current sleep apnea is less likely than not (less than 50% probability) proximately due to or the result of his service-connected sarcoidosis with pulmonary involvement.  The VA examiner also added that there is no medical evidence that the Veteran’s current sleep apnea was “permanently aggravated” by his service-connected sarcoidosis with pulmonary involvement.  The rationale was that after review of Veteran's STRs and post-service medical records, a diagnosis of severe obstructive sleep apnea (OSA) and sarcoidosis are shown.  However, the Veteran's diagnosis of obstructive sleep apnea is a separate condition from his sarcoidosis.  While sarcoidosis can involve all organ systems to a varying extent and degree, there is no medical evidence to support a causal relationship of obstructive sleep apnea and sarcoidosis with pulmonary involvement.  Obstructive sleep apnea is a functional collapse during sleep of the velopharyngeal and / or oropharyngeal airway.  Instead, the VA examiner surmised that the Veteran's obstructive sleep apnea is likely caused by associated risk factors of age, gender, and weight (the Veteran is obese).  This VA examination and opinion is based on a review of the relevant evidence of record, is uncontroverted, and provides clear evidence against the Veteran’s secondary service connection claim for sleep apnea.  There is no contrary medical opinion of record.  

With regard to lay evidence of a nexus between his current obstructive sleep apnea and his service-connected sarcoidosis with pulmonary involvement, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology.  Davidson, 581 F.3d at 1316.  In this vein, the Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology.  See Woehlaert, 21 Vet. App. at 462.  The Veteran is indeed competent to report purported symptoms of his sleep apnea such as difficulty breathing at night, choking in his sleep, daytime somnolence, headaches, etc.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  However, in the present case, neither the Veteran nor his Agent has provided any argument as to why there is a secondary relationship between these two disabilities.  The Court recently reaffirmed that the duty to assist a claimant is not a one-way street.  Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019).  The duty to assist “does not encompass ‘a duty to prove a claim with the claimant only in a passive role.’“  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).  

Accordingly, the preponderance of the evidence is against the Veteran’s service connection claim for sleep apnea on a secondary basis.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

III.  Earlier Effective Date (EED) for SSC Depressive Disorder

In a December 2016 rating decision, the AOJ granted service connection for a depressive disorder on a secondary basis to the Veteran’s service-connected glaucoma with uveitis, iritis, cataracts, and other eye disabilities.  The award of secondary service connection for his depressive disorder was effective from September 15, 2016, the date of receipt of the Veteran’s initial formal claim of secondary service connection for a depressive disorder.  See generally 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  The grant of secondary service connection was based on the findings of a subsequent November 2016 VA mental disorder examination by a VA psychologist, who opined that the Veteran’s depressive disorder was due to his service-connected iritis disability of the eyes.  See 38 C.F.R. § 3.310(a).  His psychiatric symptoms included a depressed mood, anxiousness about vision loss, a disturbance of motivation, and chronic sleep impairment.  He was laid off from his job due to his service-connected eye problems, further compounding his depression.  

In a January 2017 NOD (VA Form 21-0958), the Veteran appealed the effective date assigned for the grant of secondary service connection for his depressive disorder.  The appeal eventually reached the Board.

The Veteran contends that the current effective date assigned for the grant of secondary service connection for his depressive disorder (September 15, 2016), is incorrect.  The Veteran believes he is entitled to an earlier effective date for this award.  But neither the Veteran nor his Agent has proffered any specific argument for why the Veteran is entitled to an earlier effective date prior to September 15, 2016 for this disability.  See e.g., January 2017 NOD (VA Form 21-0958) (no argument set forth for the effective date issue).  In short, the Veteran’s rationale for asserting an earlier effective date for this award is unclear.  

In any event, effective March 24, 2015, VA updated the regulations concerning the filing of claims, adopting a standardized claims system.  See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)).  In part, VA replaced the informal / formal claims process with a standardized and more formal process.  See 79 Fed. Reg. at 57663-64; see also 38 C.F.R. § 3.155 (effective March 24, 2015).  The purpose of these amendments was to improve the quality and timeliness of the processing of veterans’ claims for benefits by standardizing the claims and appeals processes through the use of specific VA forms.  VA deleted former 38 C.F.R. § 3.157, which allowed for reports of examination or hospitalization to be treated as claims under certain circumstances, and completely rewrote 38 C.F.R. § 3.155, removing the provisions which allowed for the filing of informal claims.  

As a result of this rulemaking, a complete claim on an application form is now required for all types of claims.  38 C.F.R. § 3.155(d) (2019).  In short, effective March 24, 2015, there is no such thing as an informal claim for benefits.  However, an “intent to file a claim” may also be filed pending completion of the prescribed form for “complete claims,” either orally or on a prescribed VA Form for that purpose.  38 C.F.R. § 3.155(b).  But a claimant who wants to file a claim for benefits under laws administered by VA but does not communicate that desire orally or on a prescribed VA Form (on paper or electronically) is not considered to have filed a valid claim.  38 C.F.R. § 3.150(a).  Instead, that person is considered to have requested an application form.  Id.  In summary, it is only appropriate to refer to a communication dated on or after March 24, 2015 as a “claim” if the communication has been received on a formal application form prescribed by the Secretary (e.g., a VA Form 21-526).  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160 (effective March 24, 2015).

However, the above amendments only apply to claims filed on or after March 24, 2015.  There is neither an allegation from the Veteran nor any evidence of record that the Veteran filed any claim (on the proper standard form) for service connection (on a direct or secondary basis) for his depressive disorder, after March 24, 2015, but before the current effective date of September 15, 2016.  Thus, the amended regulations, effective March 24, 2015, pertaining to the requirement of formal claims on the proper VA prescribed form, do not apply here.  Instead, the Board will examine whether the Veteran filed any formal or informal claim for his depressive disorder prior to March 24, 2015.  Therefore, the former version of the applicable VA regulations applies, allowing for informal claims and allowing for reports of examination or hospitalization to be treated as claims, under certain circumstances.  See 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157 (2014).

Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2014).  Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application.  38 U.S.C. § 5110(a).  

If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  

The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a).  The Federal Circuit has emphasized that VA has a duty to fully and “sympathetically” develop a veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  "The law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically."  DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011).

However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative.  Cintron v. West, 13 Vet. App. 251, 259 (1999).  

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a) (2014).  A claim is 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) (2014).  Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  Such an informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a) (2014).  Again, VA is required to identify and act on informal claims for benefits.  38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2014).  However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”).  See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  

The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).

A pending claim is an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009).  A finally adjudicated claim is defined as “an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction.”  38 C.F.R. § 3.160(d).  Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest.  Id.  

The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it.  Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007); Norris v. West, 12 Vet. App. 413, 422 (1999).  The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper.  Ingram, 21 Vet. App. at 249, 255.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C. § 5107(b).

Upon review of the evidence and the law, the Board concludes the Veteran is not entitled to an effective earlier than September 15, 2016, for the award of secondary service connection for a depressive disorder.  The claim is denied.   

The effective date assigned for a secondarily service-connected disability does not relate back to the filing date of a prior claim for the antecedent disability.  Ellington v. Nicholson, 22 Vet. App. 141 (2007).  The effective date assigned for a secondary service-connected condition does not have to be the same as the effective date for the underlying condition.  Ross v. Peake, 21 Vet. App. 528 (2008).  The plain meaning of 38 C.F.R. § 3.310(a) is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations.”  Roper v. Nicholson, 20 Vet. App. 173, 181 (2006).  This includes the assignment of an effective date.  Accordingly, as with any other claim, the effective date assigned for a secondarily service-connected condition is governed by § 3.400.  The governing regulations dictate that the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later, and the Board is bound by that authority.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Furthermore, the Federal Circuit again rejected the argument that a disability service connected as secondary to an underlying service-connected disability be entitled to the same effective date of the underlying disability.  See Manzanares v. Shulkin, 863 F.3d 1374, 1377-78 (Fed. Cir. 2017).  The Federal Circuit added that there is nothing in the history of 38 C.F.R. § 3.310(a) to suggest that a claim for secondary service connection should be treated as part of a claim for primary service connection.  Id. 

Consequently, the effective date for the Veteran’s secondarily service-connected depressive disorder is based solely on the date VA received his claim for secondary service connection, which in this case was September 15, 2016.  The effective date does not necessarily relate back to the date he filed his original formal claim for the underlying service-connected eye disability, which in this case was back on December 11, 1980. 

However, the Board is also cognizant that "when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally must investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability, and such that the effective date of benefits for the causal disability can be as early as the date of the pending claim."  DeLisio v., 25 Vet. App. at 55.

With regard to the earliest date of claim, at the outset, the Board finds no evidence that a formal or informal claim for service connection or secondary service connection for a depressive disorder was received within one year after the Veteran’s separation from military service on February 28, 1980.  So the effective date obviously cannot be the day following the Veteran’s separation from service.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  

Moreover, the claims folder contains no other communication from the Veteran or any representative indicating an intent to seek, or a belief in entitlement to, service connection or secondary service connection for a depressive disorder after his separation from service on February 28, 1980, but before the September 15, 2016 effective date assigned.  See 38 C.F.R. §§ 3.1(p), 3.155(a).  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Further, there is no provision in the law for awarding an earlier effective date based on any alleged assertion that symptoms of a depressive disorder existed in the years prior to his formal September 15, 2016 claim for secondary service connection.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57.  The Board’s actions are bound by the applicable law and regulations as written; the Board has no power to grant benefits not authorized by law.  38 U.S.C. § 7104(c). 

In making this determination, the Board has considered that the Veteran filed earlier formal claims for service connection and increased ratings on VA Forms 21-526 (Veteran’s Applications for Compensation) and informal claims in the 1980s, 1990s, and 2000s.  But none of these earlier formal or informal claims for service connection identified or referenced a depressive disorder or any other psychiatric disorder.  Most importantly, these earlier formal and informal claims pertained to service-connected compensation for the eyes, sarcoidosis, the feet, the hands, the ankles, and the knees.  But they cannot be interpreted as requesting service connection or secondary service connection for a depressive disorder, even when sympathetically reviewed.  There was no intent to apply for service connection or secondary service connection benefits for a depressive disorder in any of these earlier applications.  None of these earlier applications reasonably raised a claim for a depressive disorder, as they failed to “identify the benefit sought.”  38 C.F.R. § 3.155(a).  

And once again, the effective date assigned for a secondarily service-connected disability does not relate back to the filing date of a prior claim for the antecedent disability.  See again Manzanares, 863 F.3d at 1377-78.  Consequently, the effective date for the Veteran’s secondarily service-connected depressive disorder is based solely on the date VA received his claim for secondary service connection, which in this case was September 15, 2016.  The effective date does not relate back to the date he filed his original claim for the underlying service-connected eye / vision disability, which in this case was December 11, 1980.   

The Board acknowledges that earlier VA treatment records beginning in 2006 documented treatment for depression.  The Veteran began to take Prozac.  He continued his treatment for depression in VA treatment records dated in 2011.  By that time, he was “stable” on Prozac.  This VA treatment for his depressive disorder in 2006 and 2011 is dated prior to the current September 15, 2016 effective date of the award assigned in this case.  However, these VA medical records dated in 2006 and 2011 could not support an application to reopen under 38 C.F.R. § 3.157(b) as VA medical records and private medical records cannot be accepted as informal claims for disabilities where service connection for that disability has not been established.  See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).

Moreover, the issue of CUE in a specific prior AOJ or Board decision as to service connection for a depressive disorder has not been raised by the Veteran or his Agent and is not before the Board at this time.  38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995).

In short, the earliest date of claim for a depressive disorder in the present case is September 15, 2016, the date of his Application for Compensation (VA Form 21-526EZ). 

With regard to the date of entitlement for a depressive disorder, the term “date entitlement arose” is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a “facts found” basis.  See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the "facts found."  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).  However, the date entitlement arose is not the date that the AOJ receives the evidence, but the date to which that evidence refers.  McGrath, 14 Vet. App. at 35.  It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis.  DeLisio, 25 Vet. App. at 56.  

With regard to the earliest date of entitlement, the first credible, probative evidence in the record of a depressive disorder is VA treatment records dated in 2006 and 2011.  No earlier clinical or lay records reveal depression or any other psychiatric disorder. 

Therefore, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  Thus, regardless if entitlement arose for the depressive disorder in 2006 or even earlier, the effective date for the grant of secondary service connection for the Veteran’s depressive disorder cannot be earlier than the date the claim was received, which was September 15, 2016.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).  This is the earliest possible effective date for service connection or secondary service connection for the depressive disorder, given the particular fact pattern of this Veteran’s case.  

Accordingly, the Board concludes that September 15, 2016, the date of the original, formal claim for secondary service connection for a depressive disorder, is the proper effective date for the depressive disorder award.  38 U.S.C. § 5107(b).  Neither the Veteran nor his Agent have specified why it would be otherwise.  As such, this claim for an earlier effective date is denied.

IV.  Increased Rating (IR) for Sarcoidosis at 60%

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.  

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  In fact, specific to respiratory conditions, the Court has held a lay person is competent to testify to breathing difficulties (Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)) or to symptoms of asthma (Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991)). 

The Veteran’s sarcoidosis with pulmonary involvement is currently evaluated as 60 percent disabling under Diagnostic Code 6846-6600 (sarcoidosis rated as a residual of chronic bronchitis).  38 C.F.R. § 4.97 (2019).  This 60 percent rating has been in effect since September 15, 2016.  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  38 C.F.R. § 4.27.

Sarcoidosis is a chronic, progressive systemic granulomatous reticulosis of unknown etiology, characterized by hard tubercles in almost any organ or tissue, including the skin, lungs, lymph nodes, liver, spleen, eyes, and small bones of the hands and feet, and with laboratory findings that may include hypercalcemia and hypergamma-globulinemia.  See Dorland's Illustrated Medical Dictionary 1656 (30th ed. 2003).

The Veteran filed a claim for an increased rating on September 15, 2016.   

When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his sarcoidosis with pulmonary involvement has been more severe than at others, and rate it accordingly.  “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”  Hart, 21 Vet. App. at 509.  Thus, the Board will focus on the evidence of record dated from September 2015 in adjudicating the increased rating issue for sarcoidosis with pulmonary involvement.

However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  In Schafrath v. Derwinski, the CAVC explained, “These requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition.” 1 Vet. App. 589, 594 (1991).  Therefore, the Board has also considered and reviewed the Veteran’s entire history of his sarcoidosis with pulmonary involvement symptomatology, when evaluating this disability.  38 C.F.R. § 4.1.  

Respiratory disorders are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847.  Ratings under those diagnostic codes will not be combined with each other.  Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.96(a) (2019).

Effective October 6, 2006, VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions.  See 71 Fed. Reg. 52459 (Sept. 6, 2006) (codified at 38 C.F.R. § 4.96(d)).  That is, 38 C.F.R. § 4.96(d) was added to the Rating Schedule, applicable to all applications for benefits received by VA on or after October 6, 2006.  In the present case, the Veteran filed his increased rating claim in September 2016, subsequent to the effective date of the change.  Thus, the amendments are applicable to his increased rating claim for sarcoidosis with pulmonary involvement.

Diagnostic Code 6846 provides that sarcoidosis is to be rated under either the rating criteria for sarcoidosis (Diagnostic Code 6846), or the active disease or residuals are to be rated as chronic bronchitis (Diagnostic Code 6600) and extra-pulmonary involvement rated under the specific body system involved.  See 38 C.F.R. § 4.97.

Diagnostic Code 6846 provides that sarcoidosis with chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment is rated as noncompensable (0 percent) disabling.  Sarcoidosis with pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids is rated 30 percent disabling.  Sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control is rated 60 percent disabling.  Sarcoidosis with cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment, is rated 100 percent disabling.  38 C.F.R. § 4.97 (2019). 

Also, sarcoidosis may alternatively be rated as chronic bronchitis under Diagnostic Code 6600.  Id.  Diagnostic Codes 6600-6604 are classified under VA’s Rating Schedule as Diseases of the Trachea and Bronchi.  38 C.F.R. § 4.97.  

Diagnostic Code 6600 provides that Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted, is rated 30 percent disabling.  FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling.  FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling.  Id.  

The Board emphasizes that under the provisions of 38 C.F.R. § 4.96(a), ratings under Diagnostic Codes 6600 (chronic bronchitis) and 6604 (sarcoidosis) will not be combined with each other.  This is because they are coexisting respiratory conditions with overlapping symptomatology.  Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation.  Id.  On this issue, with regard to Diagnostic Codes 6600 and 6646, assigning separate ratings under these diagnostic codes would constitute pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  In effect, the Veteran is not entitled to separate and additional ratings under these diagnostic codes for his service-connected sarcoidosis with pulmonary involvement, as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14.  Separate ratings cannot be established.  However, in rating his service-connected sarcoidosis with pulmonary involvement, application of 38 C.F.R. § 4.14 does not prohibit the Board from comparing the rating criteria for both Diagnostic Codes 6600 and 6846 and considering which provides a higher evaluation based on the manifestations of the disability.  See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Therefore, the Board will evaluate the Veteran’s sarcoidosis with pulmonary involvement under the diagnostic code that will provide the most favorable rating, ever mindful not to pyramid and overly compensate him for the same symptom.  See, e.g., Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

The amended regulation 38 C.F.R. § 4.96(d), entitled “Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845,” has seven subsections.  38 C.F.R. § 4.96(d)(1)-(7) (2019).  Thus, the provisions of 38 C.F.R. § 4.96(d)(1)-(7) specifically apply here for Diagnostic Code 6600 for the Veteran’s service-connected sarcoidosis with pulmonary involvement.

As set forth under 38 C.F.R. § 4.96(d)(1)-(7):

(1) PFTs are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient therapy oxygen is required.  38 C.F.R. § 4.96(d)(1).  

(2) If the DLCO (SB) test is not of record, evaluation is based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case.  38 C.F.R. § 4.96(d)(2). 

(3) When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case.  38 C.F.R. § 4.96(d)(3).   

(4) Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why.  38 C.F.R. § 4.96(d)(4).   

(5) When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes.  38 C.F.R. § 4.96(d)(5).  

(6) When there is a disparity between the results of different PFT FEV-1 and FVC results, so that the level of evaluation would be different depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used.  38 C.F.R. § 4.96(d)(6).  

(7) Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned.  38 C.F.R. § 4.96(d)(7).    

Upon review of the evidence, a rating greater than 60 percent for sarcoidosis with pulmonary involvement under either Diagnostic Codes 6600 or 6846 is not warranted.  38 C.F.R. § 4.7.  The claim is denied.  That is, the probative lay and medical evidence of evidence of record fails to demonstrate any of the criteria necessary for the maximum 100 percent rating – sarcoidosis with cor pulmonale (right heart failure), or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment; FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; the requirement for outpatient oxygen therapy.  See 38 C.F.R. § 4.97, Diagnostic Codes 6600 and 6846.

In particular, the following evidence of record does not support a higher 100 percent rating for the Veteran’s service-connected sarcoidosis with pulmonary involvement under either Diagnostic Code 6600 or 6846:

In VA treatment records dated from 2015 to 2018, the Veteran frequently denied a recent history of fever in the review of symptoms.  He exhibited no weight loss.  In fact, earlier VA treatment records remarked he was trying to lose weight for health purposes.  In VA treatment records dated in 2015, it was noted there was no unintentional weight loss of 10 pounds or greater over the past three months.  The Veteran did report fever and night sweats twice a week in earlier VA treatment records dated in 2001, 2002, 2005, and 2006 (occasionally), but these findings did not occur in more relevant VA treatment records dated from 2015 to 2018.  As such, although the Board has considered these records, they are not reflective of the current state of his respiratory disability.  VA treatment records confirmed he takes various prescription medications for shortness of breath, pulmonary problems, and chest pain.

VA treatment records dated throughout 2015 do not reveal pulmonary symptomatology indicative of a higher 100 percent rating for the Veteran’s sarcoidosis with pulmonary involvement. 

Private ER records dated in February 2016 documented treatment for coughing and chest pain due to the Veteran’s sarcoidosis with pulmonary involvement.

In a September 15, 2016 TDIU application (VA Form 21-8940), the Veteran reported that the combination of his service-connected sarcoidosis and glaucoma disabilities prevent gainful employment.  He was too disabled to work full-time after August 26, 2016.

VA PFTs dated in September 2016 demonstrated an FVC of 70 percent; a FEV-1 of 62 percent; a FEV-1/FVC ratio of 70 percent; and a DLCO of 58 percent.  These findings do not support a higher 100 percent rating based on PFTs.  See 38 C.F.R. § 4.97, Diagnostic Code 6600.

At a November 2016 VA respiratory examination, the VA examiner noted a history of sarcoidosis with pulmonary involvement since 1980.  The Veteran’s disability requires chronic low dose (maintenance) corticosteroids.  It also requires daily inhalational anti-inflammatory medication and intermittent inhalational bronchodilator therapy.  Importantly, no oxygen therapy was required.  There were no respiratory failures in the past 12 months and no doctor visits for exacerbations.   The VA examiner made no mention of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or other cardiopulmonary complications.  The Veteran had normal chest X-rays in November 2016.  

The November 2016 VA respiratory examiner conducted PFTs.  The PFTs only demonstrated a FEV-1 of 55 percent predicted (pre-bronchodilator); a FEV-1/FVC ratio of 65 percent predicted (pre-bronchodilator); and an FVC of 67 percent predicted (pre-bronchodilator).  In addition, his PFTs only demonstrated a FEV-1 of 67 percent predicted (post-bronchodilator); a FEV-1/FVC ratio of 42 percent predicted (post-bronchodilator); and an FVC of 127 percent predicted (post-bronchodilator).  The VA examiner assessed that the FEV-1/FVC ratio most accurately reflected the Veteran’s level of disability.  DLCO testing was not completed because it was not indicated for the Veteran’s particular case.  The Veteran’s PFT results accurately reflected the extent of impaired pulmonary functioning; therefore, DLCO was not indicated in this particular case.  These findings do not support a higher 100 percent rating based on PFTs.  See 38 C.F.R. § 4.97, Diagnostic Code 6600.  

The November 2016 VA respiratory examiner did not perform exercise capacity testing.  Finally, as to the functional impact, the November 2016 VA examiner determined that the impact of sarcoidosis with pulmonary involvement is fatigue, dizziness, and shortness of breath with physical exertion.  This level of disability is reflected by his 60 percent rating based on his PFTs.  

In a March 2017 VA primary care note, the Veteran denied fever or sweats.

VA PFTs were performed in March 2017 in Nashville.  However, it was noted that due to a computer error, this data was “irretrievably lost.”

VA PFTs performed on June 12, 2017 demonstrated the following spirometry findings: FEV-1 of 65 percent predicted; a FEV-1/FVC ratio of 94 percent predicted; and a DLCO of 85 percent predicted.  The impression was mild-to-moderate obstructive impairment with no significant improvement in spirometry post bronchodilator.  There was no restrictive impairment.  The lung volumes were suggestive of mild air trapping.  The gas exchange was normal.  The flow volume loop had an obstructive configuration.  The Veteran’s effort and technical quality were good.  Clinical correlation was suggested.  The lack of improvement in spirometry post bronchodilator does not necessarily mean a lack of clinical benefit from bronchodilators.  These findings do not support a higher 100 percent rating based on PFTs.  See 38 C.F.R. § 4.97, Diagnostic Code 6600.

During a November 2017 VA hospitalization, the Veteran was placed on oxygen therapy while hospitalized.  The Veteran was to maintain signs of adequate oxygenation.  However, there was no mention of the requirement for outpatient oxygen therapy after the November 2017 hospitalization.  In other words, this was only a temporary instance of oxygen therapy while hospitalized at a VAMC.

A November 2017 VA CT scan of the chest showed moderately severe centrilobular emphysema and a spiculated nodule in the base of the right upper lobe, 9 x 8 mm, unchanged from August 2017 and September 2016.  It was noted this was also present back in February 2010.  There were two tiny nodular densities in the posterior right upper lobe, unchanged all the way back to September 2016 and probably back to February 2010.  There was extensive mediastinal and hilar adenopathy, unchanged from February 2010.  

A December 2017 VA lung function testing report found no significant bronchodilator response on spirometry.  These PFTs demonstrated the following spirometry findings: FEV-1 of 65 percent predicted; a FEV-1/FVC ratio of 71 percent predicted; and a DLCO of 67 percent predicted.  These findings do not support a higher 100 percent rating based on PFTs.  See 38 C.F.R. § 4.97, Diagnostic Code 6600.

At a January 2018 VA respiratory examination, the Veteran reported tiredness and intermittent dyspnea.  Aside from sarcoidosis, the Veteran also has a diagnosis of emphysema.  He quit smoking in 2014.  The VA examiner assessed the Veteran's respiratory condition does not require the use of oral bronchodilators or antibiotics or outpatient oxygen therapy.  The Veteran’s treatment includes inhalational bronchodilator therapy daily and inhalational anti-inflammatory medication              daily.

The January 2018 VA respiratory examiner conducted PFTs.  The VA examiner determined the PFT results reported accurately reflected the Veteran's current      pulmonary function.  His PFTs only demonstrated a FEV-1 of 62 percent predicted (pre-bronchodilator); a FEV-1/FVC ratio of 72 percent predicted (pre-bronchodilator); an FVC of 69 percent predicted (pre-bronchodilator); and a DLCO of 67 percent predicted (pre-bronchodilator).  In addition, his PFTs only demonstrated a FEV-1 of 65 percent predicted (post-bronchodilator); a FEV-1/FVC ratio of 71 percent predicted (post-bronchodilator); and an FVC of 71 percent predicted (post-bronchodilator).  The VA examiner felt that the FVC test most accurately reflects the Veteran's level of disability.  The VA examiner added that the Veteran’s emphysema was predominantly responsible for the limitation in pulmonary function for FEV-1.  In a February 2018 VA addendum opinion, the VA examiner stated that the Veteran’s emphysema is predominantly responsible for the limitation in pulmonary function for this Veteran, but not his sarcoidosis.  The VA examiner remarked no current pulmonary deficit is noted due to his sarcoidosis.  

Regardless, when the signs and symptoms of a service-connected disability cannot be distinguished from those attributable to a non-service-connected condition, all signs and symptoms that cannot be distinguished must be attributed to the service-connected condition.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Here, the Board has considered all the Veteran’s respiratory symptoms in continuing to deny a rating greater than 60 percent.  The Board will not attempt to distinguish which condition is the cause of each respiratory symptom the Veteran experiences.  

An April 2018 VA pulmonary note indicated the Veteran has been treated for several relevant problems including a clinical diagnosis of sarcoidosis with mediastinal adenopathy; monoclonal gammopathy of undetermined significance;

a history of inhalation allergies; obstructive sleep apnea syndrome of a severe degree for which he uses a CPAP machine; lung nodules seen on a CT chest scan; and a history of smoking.  The Veteran reported shortness of breath becoming progressively worse.  He has occasional cough and slight phlegm production at times.  He has shortness breath on exertion with walking but is able to undertake normal activities.  He denied awakening with cough or wheezing at night.  He uses an inhaler through his allergist.  He has sarcoidosis as a clinical diagnosis with mediastinal adenopathy.  He has never undergone a biopsy, although he has been offered bronchoscopic biopsies and offered bronchoscopy with endobronchial ultrasound biopsies of those mediastinal nodes.  He has consistently declined a procedure because he experienced unilateral vocal paralysis due to an endotracheal intubation years ago.  He declined my recommendation of bronchoscopy.

The April 2018 VA pulmonary note documented on examination – his chest was completely clear to auscultation with good air movement, right and left equal.

The VA clinician provided a clinical diagnosis of pulmonary sarcoidosis with mediastinal adenopathy, unchanged going back several years on CT chest scan.  He has never had a biopsy and has declined lymph node biopsies by bronchoscopy or otherwise.  Also, he has small lung nodules, with no change on CT chest scan apparently going back at least 2016 and probably 2010.  A PET CT scan had been 

scheduled by that clinician in December 2017, but this was changed by another 

provider to a routine CT chest scan, which was unchanged.  On exertion, he had 

shortness of breath, which the Veteran felt was worsening.  His examinations, lung function testing, and history were not typical of asthma.  He uses inhaler treatment.  

His spirometry on lung function testing has not changed, though the total lung capacity might be slightly lower and the DLCO might be slightly lower.  He has a clinical diagnosis of sarcoidosis without biopsy, and this may be the cause of his mediastinal and hilar adenopathy.  With a diagnosis of monoclonal gammopathy, the presence of mediastinal adenopathy is concerning.  He has declined biopsy.

A June 2018 VA urgent care note disclosed no fever.

Finally, no lay statements of record provide evidence in support of a higher 100 percent rating. 

In short, none of the above evidence of record demonstrates the criteria required for a higher 100 percent rating for sarcoidosis with pulmonary involvement under either Diagnostic Code 6600 or 6646.  

Accordingly, the preponderance of the evidence is against an increased rating above 60 percent for the Veteran’s sarcoidosis with pulmonary involvement.  38 C.F.R. § 4.3.  The claim is denied. 

Finally, for the Veteran’s service-connected sarcoidosis with pulmonary involvement, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  

V.  Earlier Effective Date (EED) for IR Sarcoidosis with Pulmonary Involvement

In an August 1984 Board decision, the Board granted service connection for sarcoidosis.  In a November 1984 rating decision, the AOJ implemented the Board’s grant by assigning a 70 percent rating for his sarcoidosis with pulmonary involvement.  

From December 11, 1980 to September 28, 1984, the Veteran was assigned a 70 percent rating for his sarcoidosis with pulmonary involvement.  

From September 28, 1984 to October 18, 1991, the Veteran was assigned a 0 percent rating for his sarcoidosis with pulmonary involvement.  

From October 18, 1991 to September 15, 2016, the Veteran was assigned a 10 percent rating for his sarcoidosis with pulmonary involvement.  

From September 15, 2016 to the present, the Veteran is assigned a 60 percent rating for his sarcoidosis with pulmonary involvement.  See 38 C.F.R. § 4.97; Diagnostic Code 6846-6600.  

In the December 2016 rating decision on appeal, the AOJ assigned the current 60 percent rating for the Veteran’s sarcoidosis with pulmonary involvement.  The effective date assigned for the 60 percent rating for his sarcoidosis with pulmonary involvement – September 15, 2016, is the date his formal Application for Compensation (VA Form 21-526EZ) for an increased rating was received by the AOJ.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).  Thereafter, the Veteran expressed disagreement with the effective date assigned for the 60 percent rating, and the appeal has now reached the Board.  

The Veteran asserts he is entitled to an effective date prior to September 15, 2016, for the assignment of a 60 percent rating for his sarcoidosis with pulmonary involvement.  But neither the Veteran nor his Agent has proffered any specific argument for why the Veteran is entitled to an earlier effective date prior to September 15, 2016 for the 60 percent rating.  See e.g., January 2017 NOD (VA Form 21-0958) (no argument set forth for the effective date issue).  In short, the Veteran’s rationale for asserting an earlier effective date for the 60 percent award is unclear.  

The principle of staged ratings may be applied in considering the effective date of an evaluation as either part of the initial disability evaluation or as part of a claim for increase.  See e.g., Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Court has defined initial rating claims as “original claims that were placed in appellate status by NODs expressing disagreement with initial rating awards and never ultimately resolved until the Board decision on appeal.”  Fenderson v. West, 12 Vet. App. 119, 125 (1999).  In other words, an initial rating claim proceeds from a rating decision that granted service connection for the disability at issue.  

In contrast, an increased rating claim is one "[w]here entitlement to compensation has already been established and an increase in the disability rating is at issue.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  “A claim for an increased rating is a new claim” that is “based upon facts different from the prior final claim” and is a claim where a “veteran claims that his service-connected disability has undergone an increase in severity since that prior claim.”  Fenderson, 12 Vet. App. at 125 (internal quotations and citations omitted, emphasis in original).  In other words, the rating decision on appeal for an increased rating claim will not be the one that granted service connection for the disability.

In the present case, the effective date issue on appeal for the Veteran’s assignment of a 60 percent rating for sarcoidosis with pulmonary involvement stems from an “increased rating” in the traditional sense.  The distinction is important for effective date purposes.  Cf. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Veteran was originally granted service connection for his sarcoidosis with pulmonary involvement in 1984.  He filed several increased rating claims over the years thereafter.  Over several decades, he was assigned staged ratings for his sarcoidosis with pulmonary involvement – 70 percent, 0 percent, 10 percent, and 60 percent.  He is appealing the most recent effective date of September 15, 2016 assigned for his 60 percent rating.  

The effective date provisions for awards of increased disability compensation include a general rule - an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore."  38 U.S.C. § 5110(a).  The corresponding VA regulation expresses this rule as "date of receipt of claim or date entitlement arose, whichever is later."  38 C.F.R. § 3.400(o)(1).

That notwithstanding, there is a special provision for an increased rating award, which allows for an effective date up to one year prior to the date of receipt of the claim, sometimes informally called “the one-year lookback period.”  Specifically, if an increase in disability level was “factually ascertainable” within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred; otherwise, the effective date will be the date of receipt of the claim.  See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  The purpose of this provision is to provide a one-year grace period for filing a claim following any increase in severity of a service-connected disability.  Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010).

However, if the evidence reflects that the increase in severity first occurred more than one year before the date of the claim, then 38 C.F.R. § 3.400(o)(2) does not apply and the effective date is the date of the claim as under the general effective date rules.

In short, three possible effective dates may be assigned depending on the facts of the case: 

(1) If an increase in disability occurs after the claim is filed, the effective date is the date the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); 

(2) If an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or 

(3) If an increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). 

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

Upon review of the evidence, an effective date earlier than September 15, 2016 for the assignment of a 60 percent rating for sarcoidosis with pulmonary involvement is denied.  

As to finality, under the legacy system, an AOJ decision becomes final unless an NOD is filed or new and material evidence is received within the one-year appeal period.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.  A finally adjudicated claim is defined as “an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction.”  38 C.F.R. § 3.160(d).  Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest.  Id. 

A final decision is generally not subject to revision on the same factual basis.  38 C.F.R. § 3.104(a).  Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE).  38 C.F.R. §§ 3.104(b), 3.105(a).  

In an earlier October 2013 rating decision, the AOJ denied the Veteran an increased rating for sarcoidosis with pulmonary involvement.  The Veteran was notified of the October 2013 rating decision and of his appellate rights, but he did not submit a NOD, or new and material evidence, within one year of the notice of the rating decision.  Therefore, the October 2013 rating decision became final for the increased rating issue for sarcoidosis with pulmonary involvement.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2013).  This is the most recent final denial of the increased rating issue.  As such, no earlier increased rating claims for sarcoidosis with pulmonary involvement are open or pending.  See 38 C.F.R. § 3.160(c) (a pending claim is a claim which has not been “finally adjudicated.”)  

In order for the Veteran to be awarded an effective date based on an earlier claim prior to the final October 2013 rating decision, he or she has to show CUE in a prior denial of the claim.  38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995).  As noted in the introduction of the present Board decision, the Veteran has been advised that if wishes to pursue a motion for CUE in an earlier September 1984 rating decision, he must file it on the appropriate form.  In any event, a CUE issue is not before the Board at this time.

With regard to the date of the increased rating claim, it is undisputed that the AOJ received the Veteran’s formal claim for an increased rating for sarcoidosis with pulmonary involvement on September 15, 2016.  See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160 (effective March 24, 2015).  The Veteran has never disputed this fact.  The claims file contains no other communication from the Veteran or his Agent indicating an intent to seek, or a belief in entitlement to, an increased rating for his sarcoidosis with pulmonary involvement in the time period after the final October 2013 rating decision but before the September 15, 2016 effective date assigned.  See 38 C.F.R. §§ 3.1(p), 3.155(a).  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  

With regard to the date of entitlement for the 60 percent rating for sarcoidosis with pulmonary involvement, the term “date entitlement arose” is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a “facts found” basis.  See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the “facts found.”  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).  However, the date entitlement arose is not the date that the AOJ receives the evidence, but the date to which that evidence refers.  McGrath, 14 Vet. App. at 35.  It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis.  DeLisio, 25 Vet. App. at 56.  

With regard to the date of entitlement in this case, under Diagnostic Code 6600, a 60 percent disability rating is assigned for sarcoidosis with pulmonary involvement  demonstrating FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).  38 C.F.R. § 4.97.  Also, under Diagnostic Code 6846, a 60 percent disability rating can be assigned for sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control.  Id.  

With regard to the date of entitlement for the 60 percent rating, the Board finds that the PFTs conducted at the November 2016 VA respiratory examination demonstrated a FEV-1/FVC ratio of 42 percent predicted (post-bronchodilator).  This supports a 60 percent rating for the Veteran’s sarcoidosis with pulmonary involvement under 38 C.F.R. § 4.97, Diagnostic Code 6600.

However, there is no probative lay or medical evidence that a 60 percent rating for the sarcoidosis with pulmonary involvement was “factually ascertainable” within the one-year period before the receipt of the September 15, 2016 formal claim for an increased evaluation.  See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  VA treatment records dated throughout 2015 and 2016 do not reveal pulmonary symptomatology indicative of a higher 60 percent rating.  Also, private ER records dated in February 2016 documented treatment for coughing and chest pain due to the Veteran’s sarcoidosis with pulmonary involvement, but none of the criteria for a 60 percent rating were established at that time.  Furthermore, no other probative medical or lay evidence of record suggests the increase in severity of the disability began during the one year period prior to the September 15, 2016 formal increased rating claim.  See Swain v. McDonald, 27 Vet. App. 219, 223-24 (2015) (the Board must review all relevant evidence of record to determine when the increase in the disability can be ascertained); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date”). 

Therefore, the general default rule for the effective date of an increased rating applies – “date of receipt of claim or date entitlement arose, whichever is later.”  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).  In this case, the date entitlement arose for a 60 percent rating for sarcoidosis with pulmonary involvement (November 2016), is clearly later in time than the date of receipt of the most recent increased rating claim (September 15, 2016).  The AOJ nevertheless awarded the 60 percent rating effective from the date of his September 15, 2016 increased rating claim.  But even if, for the sake of argument, the 60 percent rating for sarcoidosis with pulmonary involvement was factually ascertainable more than one year before the September 15, 2016 claim, by law the effective date would still be the date of claim.  See 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. at 126. 

Accordingly, the preponderance of the evidence is against an effective date earlier than September 15, 2016 (date of IR claim) for the assignment of a 60 percent rating for sarcoidosis with pulmonary involvement.  38 U.S.C. § 5107(b).  The appeal is denied. 

VI.  SMC Housebound at the “S” Level

SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.  See generally 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability).  The rate of SMC varies according to the nature of the Veteran’s service-connected disabilities.  

Basic levels of SMC are listed at 38 U.S.C. § 1114(k).  Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o).  SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability.  

The AOJ has already awarded the Veteran SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of the right eye having only light perception, effective from January 1, 2013.  This is known as SMC at the “K” level.  

Also, the Veteran has been awarded a total disability rating based on individual unemployability (TDIU) and a permanent and total (P&T) rating due to his service-connected disabilities, effective from August 27, 2016.  There is no question he is severely disabled and cannot work.  

However, here, the Veteran seeks an additional award of SMC on account of being housebound, at the higher rates as set forth under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).  This is known as SMC at the “S” level. 

SMC benefits by reason of being housebound are payable under 38 U.S.C. § 1114(s) if the Veteran has a single disability rated as 100 percent disabling (as total), and has either:

(1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or 

(2) is “permanently housebound” by reason of service-connected disability or disabilities.  

38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  

The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.  38 C.F.R. § 3.350(i)(1).

In the alternative to the 60 percent or more rating, the “permanently housebound” requirement is met if a veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or if institutionalized to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  38 C F R § 3.351(i)(2).  However, the Court has held that leaving one’s house for medical purposes cannot by itself serve as the basis for finding that one is not substantially confined for purposes of section 1114(s).  Howell v. Nicholson, 19 Vet. App. 535, 540 (2006).  In other words, one can leave the home for medical purposes and still be considered “permanently housebound” under VA law.  In any event, while section 1114(s) benefits are also awarded where service-connected disability renders the veteran permanently housebound, in fact, it has neither been contended nor shown that the Veteran in this case is permanently housebound.  As such, this aspect of the law need not be discussed here.  

Turning now to the requirement for a single disability rating at 100 percent, the Federal Circuit has held housebound benefits are not available to a veteran whose total 100 percent disability rating is based on multiple disabilities, none of which is individually rated at 100 percent disabling.  Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011).  

However, for the purpose of meeting this criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extra-schedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or, 4.30 (temporary total convalescence rating).  See VAOPGCPREC 2-94 (February 2, 1994).

In Bradley v. Peake, 22 Vet. App. 280, 293 (2008), the Court subsequently confirmed that a grant of TDIU based on a single disability constitutes a “service-connected disability rated as total” for purposes of housebound benefits under section 1114(s).  In other words, a TDIU rating based on a single disability, but not multiple disabilities, is permitted to satisfy the statutory requirement of a total rating.  Bradley, 22 Vet. App. at 293.  The Court explained there could be a situation where a Veteran has a 100 percent schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC housebound benefits under 38 U.S.C. § 1114(s) by having an “additional” disability of 60 percent or more (“housebound” rate).  Id. at 292-94.  Nonetheless, the TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits.  Id. at 293.  

In addition, the decision to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) is specifically limited to TDIU ratings.  That is, a TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C. § 1114(s).  Id. at 290-91.  In fact, the Court in another case subsequently confirmed that a “TDIU rating that is based on multiple disabilities cannot satisfy the section 1114(s) requirements of ‘a service-connected disability’ because that requirement must be met by a single disability.”  Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010).  The Court recently added that a TDIU based on multiple service-connected disabilities that are considered as “one disability” under 38 C.F.R. § 4.16(a) (for example, disabilities affecting a single body system or common etiology) may not be used to establish “a service-connected disability rated as total” for SMC housebound eligibility pursuant to § 1114(s).  Youngblood v. Wilkie, 31 Vet. App. 412, 416-18 (2019).  

Regardless, VA’s duty to maximize benefits requires VA to assess all of a claimant’s disabilities, regardless of the order in which they were service connected, to determine whether any combination of disabilities establishes housebound benefits under 38 U.S.C. § 1114(s).  Buie, 24 Vet. App. at 249-250.  

The Veteran is 60 years of age.  The Veteran has the following service-connected disabilities: glaucoma with uveitis, rated as 60 percent disabling; sarcoidosis with pulmonary involvement, rated as 60 percent disabling; depressive disorder, rated as 50 percent disabling; right knee arthritis, rated as 10 percent disabling; and a right foot callus, rated as 0 percent disabling.  The combined service-connected disability rating is 90 percent.  See 38 C.F.R. § 4.25 (combined ratings table).  Therefore, during the course of the appeal, the percentage criteria for TDIU are clearly met.  38 C.F.R. § 4.16(a).  

With regard to housebound status, the threshold statutory requirement is that the Veteran must have a single permanent disability rated at a schedular 100 percent.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  The Veteran does not have a single permanent disability rated at 100 percent, at any point during his appeal.  His highest rated disabilities are his glaucoma with uveitis, and his sarcoidosis with pulmonary involvement, each rated as 60 percent disabling.  Absent a single disability rated as 100 percent disabling, the Veteran normally would not meet the threshold legal criteria for entitlement to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).  

However, in an August 2017 rating decision, the AOJ awarded the Veteran a TDIU rating, effective August 27, 2016.  The AOJ predicated the TDIU award on the combination of the effects of his service-connected glaucoma with uveitis, sarcoidosis with pulmonary involvement, and depressive disorder.  See August 2017 rating decision.  The AOJ did not specifically determine that the effects of a single service-connected disability, standing alone, were sufficient to award the TDIU rating due to unemployability.  Again, only a TDIU rating based on a single disability, but not multiple disabilities, is permitted to satisfy the statutory requirement of a total rating for housebound purposes.  Bradley, 22 Vet. App. at 290-91.  In short, the TDIU award in this case was based on multiple disabilities, which would rule out housebound benefits for the Veteran.  The question is whether the Board agrees with the AOJ’s assessment, or in the alternative whether the evidence of record shows that a single disability could have formed the basis for the TDIU award.  

VA’s duty to maximize benefits requires VA to assess all of a claimant’s disabilities, regardless of the order in which they were service connected, to determine whether any combination of disabilities establishes housebound benefits under 38 U.S.C. § 1114(s).  Buie, 24 Vet. App. at 249-250.  It follows that the Board must determine whether in the present case, a TDIU rating based on a single disability could satisfy the statutory requirement of a total rating for purposes of entitlement to SMC by reason of being housebound.  Bradley, 22 Vet. App. at 293.  

With this in mind, the Board finds that the Veteran’s TDIU award effective August 27, 2016 could have been based on the effects of a single disability alone – specifically, the Veteran’s service-connected glaucoma with uveitis, iritis, cataracts, and other eye conditions, rated as 60 percent disabling.  In particular, the following evidence of record establishes that the Veteran’s service-connected eye / vision disability alone rendered him unable to secure or follow a substantially gainful occupation: An October 2011 VA eye examination discussed that the Veteran’s poor central vision in his service-connected right eye affects his work as a machine operator and it would not be advised that the Veteran work with any hazardous equipment or materials.  In a September 15, 2016 TDIU application (VA Form 21-8940), the Veteran credibly reported that he was removed from his job as a welder on August 26, 2016 because his service-connected glaucoma prevented gainful employment.  He could no longer weld due to his service-connected eyes.  A November 2016 VA mental disorder examination by a VA psychologist remarked that the Veteran was laid off from his last job because of difficulties with his service-connected eyes, which presented a limitation.  The Veteran worked in construction and requested that he not work in welding because of his sensitivity to light.  It was noted that he was legally blind in his right eye and relies on his wife to drive him anywhere.  A December 2017 VA examination for housebound / aid and attendance (VA Form 21-2880) from a VA doctor assessed the Veteran requires the aid and attendance of another due to his service-connected eyes.  He cannot prepare meals.  He requires assistance with activities of daily living and with medication management due to his blindness in the right eye and low vision in the left eye.  

At a February 2017 VA eye examination, the Veteran credibly reported he was working as a welder but was laid off because he could not see well enough to perform his welding tasks.  The VA examiner when analyzing the functional impact of the Veteran’s service-connected eye / vision problems surmised that the Veteran is essentially monocular with only hand motion at approximately 3 inches in the right eye rendering him with minimal to no usable vision in the right eye causing increased strain and fatigue of the good eye (the left eye).  He has little to no depth perception due to monocularity making working in certain environments near impossible such as having to maneuver around or use hazardous equipment, environments such as construction, and difficulty with identifying depth regarding stairs, curbs, and changes in inclines or terrain.  He would have difficulty with many visual tasks due to fatigue in his left eye such as long-term reading tasks and using electronic screens for long periods of time.  In times where there are flare-ups of iritis or uveitis in his eyes, he will have great discomfort, blurred vision, and pain, which may cause a need to be out of a working environment until adequately controlled. 

At a February 2018 VA eye examination, the Veteran credibly reported that he is having difficulty with mobility as the result of his service-connected eyes.  He is bumping into objects on his right side.  He also trips over objects – due to service-connected blindness in the right eye.  He also is experiencing a lot of strain in his service-connected left eye.  His wife walks with him to help him maneuver at times.  Upon testing, his corrected distance vision in his right eye was 5/200 or worse, with vision limited to no more than light perception with the inability to perceive objects, hand movements, or count fingers at 3 feet.  This impacts his ability to work – he has a total vision loss in the right eye, which causes increased need for scanning with mobility, thus increasing the risk of injury / falls due to bumping into objects in his path.  He has suffered from more strain to his remaining good left eye.  

In light of the above evidence, the TDIU award in effect could have been based on one single disability (his eye / vision disability), which rendered the Veteran unable to secure or follow a substantially gainful occupation.  See 38 C.F.R. § 4.16(a).  Although his eye / vision disability was rated as only 60 percent disabling by the AOJ and was not rated as 100 percent disabling, for purposes of SMC housebound benefits, the eye / vision disability satisfied the requirement of a “service-connected disability rated as total” based on an award of a TDIU rating.  See Bradley, 22 Vet. App. at 293.  See also 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  Therefore, this threshold criterion for SMC housebound benefits requirement is met.  

Finally, as to the remaining statutory housebound requirement, the Veteran also has additional service-connected disabilities independently ratable at 60 percent or more when combined.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  Moreover, in the present case, the disabilities independently ratable at 60 percent or more are separate and distinct from the eye / vision disability associated with TDIU and involve different anatomical segments or bodily systems.  38 C.F.R. § 3.350(i)(1).  Specifically, the Veteran has the following other service-connected disabilities:  sarcoidosis with pulmonary involvement, rated as 60 percent disabling; depressive disorder, rated as 50 percent disabling; right knee arthritis, rated as 10 percent disabling; and a right foot callus, rated as 0 percent disabling.  These additional disabilities would combine to an 80 percent rating.  See 38 C.F.R. § 4.25 (combined ratings table).  Therefore, these additional service-connected disabilities are independently ratable at 60 percent or more when combined, and they are separate and distinct from the single 60 percent rated eye / vision disability upon which the TDIU is based and involve different anatomical segments or bodily systems.  38 C.F.R. § 3.350(i)(1).  It follows that the Veteran meets the criteria for this remaining statutory housebound requirement.

Therefore, resolving any doubt in the Veteran’s favor, SMC based on housebound status is granted.   See 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. § 3.350(i). 

VII.  SMC Aid and Attendance at the “L” Level

Once again, the Veteran is 60 years of age.  The Veteran has the following service-connected disabilities: glaucoma with uveitis, rated as 60 percent disabling; sarcoidosis with pulmonary involvement, rated as 60 percent disabling; depressive disorder, rated as 50 percent disabling; right knee arthritis, rated as 10 percent disabling; and a right foot callus, rated as 0 percent disabling.  The combined service-connected disability rating is 90 percent.  See 38 C.F.R. § 4.25 (combined ratings table).  

Also, the Veteran has been awarded a TDIU and a permanent and total (P&T) rating due to his service-connected disabilities, effective from August 27, 2016.  There is no question he is severely disabled and cannot work.  

The AOJ has already awarded the Veteran SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of the right eye having only light perception, effective from January 1, 2013.  This is known as SMC at the “K” level.  

And in light of the analysis above, the Board has also awarded the Veteran SMC on account of being housebound, at the rates set forth under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).  This is known as SMC at the “S” level.

However, here, the Veteran seeks an additional award(s) of SMC based on the need for regular aid and attendance, at the higher rates set forth under 38 U.S.C. § 1114(l).  This is known as SMC at the “L” level. 

SMC under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person (emphasis added).

At the outset, the medical and lay evidence of record does not demonstrate the following: an anatomical loss or loss of use of both feet, or of one hand and one foot; blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); or permanent bedridden status.  See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).  Although the Veteran is legally blind in his right eye, he is not blind in his left eye and does not have visual acuity of 5/200 or less in the left eye or concentric contraction of the field of vision beyond 5 degrees in the left eye.  Specifically, a January 2013 VA eye exam noted left eye 20/20 vision.  An August 2013 VA examination observed left eye visual acuity of 20/40.  VA treatment records dated from 2016 to 2018 show visual acuity readings in the left eye with correction of 20/20, 20/20-2, and 20/20-1.  His left eye was assessed to have “low vision,” but not blindness.  VA eye examinations dated in February 2017 and February 2018 revealed corrected distance vision for the left eye of 20/40 or better.  The February 2017 VA examiner remarked the Veteran did not meet the legal (statutory) criteria for blindness in the left eye.  Finally, the Veteran is not bedridden and only rarely was observed using assistive devices to ambulate as the result of any lower extremity condition.  His upper extremity impairments are also minimal; in any event, he is not service-connected for any upper extremity condition.  As such, the Veteran does not meet any of these criteria for an SMC rating at the “L” level under 38 U.S.C. § 1114(l).  

However, SMC under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) is also payable as the result of service-connected disability if a veteran so helpless as to need regular aid and attendance of another person.

Initially, there is no statutory or regulatory threshold requirement for a total 100 percent rating, in order to be eligible for entitlement to SMC based on the need for regular aid and attendance.  See 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.351(b), 3.352(a).   

In determining the need for regular aid and attendance of another person, the following will be accorded consideration:  Inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment.  38 C.F.R. § 3.352(a).

Bedridden, i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination.  The fact that a Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  38 C.F.R. § 3.352(a).

It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made.  See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all).  The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole.  It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  Determinations that the Veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the Veteran’s condition is such as would require him or her to be in bed.  They must be based on the actual requirements of personal assistance from others.  38 C.F.R. § 3.352(a).  

The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.  38 C.F.R. § 3.352(c).

Upon review of the evidence, SMC on account of the need for regular aid and attendance is warranted.  See 38 U.S.C. § 1114(l), 38 C.F.R. §§ 3.350(b), 3.352(a).  In making this determination, the Board has considered both the lay and medical evidence of record.  This SMC award is based on the impact of the Veteran’s service-connected glaucoma with uveitis, iritis, cataracts, and other bilateral eye disabilities.  With regard to the factors of aid and attendance, the Veteran meets the criteria for the need of the aid and attendance of another person, due to the impact of his service-connected eye / vision disability.  38 C.F.R. § 3.352(a).  Both medical and lay evidence of record is supportive of the SMC A&A claim.  

Specifically, in a September 15, 2016 TDIU application (VA Form 21-8940), the Veteran credibly reported that he was removed from his job as a welder on August 26, 2016 because his service-connected glaucoma prevented gainful employment.  He could no longer weld due to his service-connected eyes.  A November 2016 VA mental disorder examination by a VA psychologist remarked that the Veteran was laid off from his last job because of difficulties with his service-connected eyes, which presented a limitation.  The Veteran worked in construction and requested that he not work in welding because of his sensitivity to light.  It was noted that he was legally blind in his right eye and relies on his wife to drive him anywhere.  Most importantly, a December 2017 VA examination for housebound / aid and attendance (VA Form 21-2880) from a VA doctor assessed the Veteran requires the aid and attendance of another due to his service-connected eyes.  He cannot prepare meals.  He requires assistance with activities of daily living and with medication management due to his blindness in the right eye and low vision in the left eye.  

At a February 2017 VA eye examination, the Veteran credibly reported he was working as a welder but was laid off because he could not see well enough to perform his welding tasks.  The VA examiner when analyzing the functional impact of the Veteran’s service-connected eye / vision problems surmised that the Veteran is essentially monocular with only hand motion at approximately 3 inches in the right eye rendering him with minimal to no usable vision in the right eye causing increased strain and fatigue of the good eye (the left eye).  He has little to no depth perception due to monocularity making working in certain environments near impossible such as having to maneuver around or use hazardous equipment, environments such as construction, and difficulty with identifying depth regarding stairs, curbs, and changes in inclines or terrain.  He would have difficulty with many visual tasks due to fatigue in his left eye such as long-term reading tasks and using electronic screens for long periods of time.  In times where there are flare-ups of iritis or uveitis in his eyes, he will have great discomfort, blurred vision, and pain, which may cause a need to be out of a working environment until adequately controlled. 

At a February 2018 VA eye examination, the Veteran credibly reported that he is having difficulty with mobility as the result of his service-connected eyes.  He is bumping into objects on his right side.  He also trips over objects – due to service-connected blindness in the right eye.  He also is experiencing a lot of strain in his service-connected left eye.  His wife walks with him to help him maneuver at times.  Upon testing, his corrected distance vision in his right eye was 5/200 or worse, with vision limited to no more than light perception with the inability to perceive objects, hand movements, or count fingers at 3 feet.  This impacts his ability to work – he has a total vision loss in the right eye, which causes increased need for scanning with mobility, thus increasing the risk of injury / falls due to bumping into objects in his path.  He has suffered from more strain to his remaining good left eye.  

In summary, in light of the above evidence, the Veteran meets several, but not all, of the factors of aid and attendance.  See Turco, 9 Vet. App. 224 (eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all).  The above evidence reflects the necessity of the regular need for aid and attendance of another family member or person, due to the impact of the Veteran’s service-connected glaucoma with uveitis, iritis, cataracts, and other bilateral eye disabilities.  38 C.F.R. § 3.352(a).  Simply stated, it does not appear the Veteran would be able to take care of himself without the regular assistance of another person – usually his spouse.

Consequently, resolving any doubt in the Veteran’s favor, the medical and lay evidence above supports SMC for regular aid and attendance (A&A) at the “L” level, based on his service-connected eye / vision disability.  38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.350, 3.352.  The SMC A&A claim is granted.  

VIII.  Specially Adapted Housing (SAH)

Specially adapted housing is available to a veteran who has a permanent and total (P&T) service-connected disability due to: (1) amyotrophic lateral sclerosis (ALS) rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows.  38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d).

Specially adapted housing is also available to a veteran with a permanent and total (P&T) disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion.  38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d) (emphasis added).

The term preclude locomotion means the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible.  38 C.F.R. § 3.809(c).  

Loss of use may be organic or functional in origin.  VAOPGCPREC 60-90 (Jul. 18, 1990) (SMC was warranted for functional (as opposed to organic) loss of the foot due to service-connected functional hysteria or conversion reaction, where such loss was permanent in nature).

Loss of use” exists if a veteran has a deprivation of the ability to use a lower extremity so severe that it precludes perambulating without one of the required assistive devices.  That definition indicates that locomotion is precluded even if a veteran is capable on occasion of moving about unaided.  In addition, functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination.  However, that does not mean that every time an individual is prescribed an assistive device in conjunction with a lower extremity disability that the individual would automatically be eligible to receive specially adaptive housing.  To receive specially adaptive housing based on loss of use, an individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices.  Jensen v. Shulkin, 29 Vet. App. 66 (2017); 38 U.S.C. § 2101(a)(2)(B).

In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court clarified that the standard for “loss of use of the feet” under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is not the same as “loss of use of the lower extremities” for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b).  That is, “loss of use of the feet” is a more stringent standard for a veteran to meet than “loss of use of the lower extremities.”  Id.  The Jensen Court did note, however, that “loss of use” in a general sense was the “deprivation of the ability to avail oneself” of that extremity.  Id. 

The ultimate responsibility for determining whether there is loss of use rests with the adjudicator and is a conclusion of law.  Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity, 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present).

Once again, the Veteran is 60 years of age.  The Veteran has the following service-connected disabilities: glaucoma with uveitis, rated as 60 percent disabling; sarcoidosis with pulmonary involvement, rated as 60 percent disabling; depressive disorder, rated as 50 percent disabling; right knee arthritis, rated as 10 percent disabling; and a right foot callus, rated as 0 percent disabling.  The combined service-connected disability rating is 90 percent.  See 38 C.F.R. § 4.25 (combined ratings table).  

Also, the Veteran has been awarded a TDIU and a permanent and total (P&T) rating due to his service-connected disabilities, effective from August 27, 2016.  There is no question he is severely disabled and cannot work.  

With regard to lay evidence, the Veteran filed an August 2017 Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant (VA Form 26-4555).  The Veteran noted he was not in a nursing home or medical care facility.  However, he reported restrictions with his bathing fixtures.  He cannot get in and out of his bathtub due to the effects of his service-connected right knee arthritis.  In addition, his bilateral hand arthritis prevents him from gripping objects.  He requires an improved method of access for his shower like a walk-in shower or sit-in tub shower.  In addition, at a November 2017 VA occupational therapy consult, the Veteran advised the VA clinician that he had a “claw foot tub” at home and was experiencing difficulty with getting into the tub.  The Veteran asked if VA occupational therapy personnel could send the following adaptive equipment to his home: a reacher, a shower sponge, and a sock aide.  Throughout the appeal, the Veteran has also reported the severe effects on mobility due to his service-connected blindness in the right eye and service-connected low vision in the left eye.  

Upon review of the evidence of record, the Board finds that entitlement to specially adapted housing is not warranted.  See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(b).  The claim is denied.

With regard to a threshold eligibility issue, an August 2017 rating decision already awarded the Veteran permanent and total (P&T) disability due to a combination of service-connected glaucoma with uveitis, sarcoidosis with pulmonary involvement, and depressive disorder.  See 38 C.F.R. § 3.340 (discussing criteria for permanent and total (P&T) ratings).  Moreover, in the present Board decision, the Board has determined that the Veteran has a permanent and total (P&T) disability due to his service-connected eye / vision disability standing alone.  Id.  In any event, the Veteran meets this initial threshold criterion for specially adapted housing in that he has service-connected permanent and total (P&T) disability.  See 38 C.F.R. § 3.809(a).  This is undisputed.  

However, the evidence of record fails to establish a permanent and total (P&T) service-connected disability from (1) amyotrophic lateral sclerosis (ALS) rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows.  38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d).  In this regard, as discussed in great detail above in the present Board decision for the SMC issue, the Veteran’s service-connected blindness in the right eye is a P&T disability.  However, he is clearly not blind in his other service-connected left eye.  In addition, the Veteran has no burns on his upper and lower extremities.  Furthermore, he does not have loss or loss of use of both upper extremities precluding use of the arms at or above the elbows.  No evidence of record reveals loss of use of the upper extremities. What’s more, he is not service-connected for any upper extremity disability at the present time. 

Of equal significance is that the evidence of record fails to establish a permanent and total (P&T) disability that precludes locomotion without the “regular and constant use” of braces, crutches, canes, or a wheelchair due to: (1) the loss, or loss of use, of both lower extremities; (2) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, (3) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion.  38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d).  It is undisputed the Veteran has mobility issues due to his service-connected eye / vision disability.  At times, he used a cane to ambulate due to his service-connected blindness in the right eye.  Moreover, at times he was also observed to wear a right foot brace.  However, his service-connected disabilities did not “preclude locomotion” for purposes of entitlement to specially adapted housing because these disabilities failed to necessitate the “regular and constant use” of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible.  See 38 C.F.R. § 3.809(c).  There were frequent occasions in the clinical evidence of record in which the Veteran did not use assistive devices to ambulate.  Therefore, he did not exhibit loss or loss of use of either lower extremity.  See 38 C.F.R. § 3.809(b).  

Specifically, a June 2011 VA knee and ankle examination observed “no walking limitation” from ankle or service-connected knee disabilities.  His gait was normal.  He uses no assistive devices.  A June 2011 VA foot examiner assessed service-connected right foot pain from calluses.  There was pain and lack of endurance on the bottom of the right foot while standing and walking.  But there were no limitations to walking.  The Veteran could stand between 1-3 hours.  The effects on his occupation were decreased mobility and pain.

VA treatment records dated from 2016 to 2018 made no mention of the Veteran using a wheelchair, a cane, a walker, or braces.  He does however wear arch supports on the right foot.  He was often observed ambulating without assistance, with a steady or normal gait.  There was only one exception during a November 2017 VA hospitalization when he walked with an unsteady gait and required assistance ambulating.  But the Board observes this was not a “regular and constant” occurrence.    

A March 2017 VA neurology consult report showed full motor strength of 5/5 in the upper and lower extremities.  Tone was normal.  Sensory was intact throughout.  The VA clinician elicited normal 2+ reflexes in the upper and lower extremities.  No coordination issues were seen.  The Veteran ambulated with a normal, casual gait.

A May 2017 VA knee and lower leg examination specifically advised that the Veteran did not use assistive devices.  A May 2017 VA ankle examiner stated that the Veteran does not use any assistive devices as a normal mode of locomotion.  At a May 2017 VA foot examination, the Veteran reported no problems with his left foot.  For his right foot, he described continued chronic pain in his right foot, swelling, and pain when walking.  There was a negative impact causing functional impairment during prolonged standing, walking, running, or stair climbing.  He wears arch supports for the right foot.  The VA examiner added that the Veteran uses a brace for his service-connected right foot on an “occasional basis.”  Notably, the VA examiner did not assess regular or constant use of a right foot brace.  

A November 2017 VA occupational therapy consult determined the Veteran’s upper extremities were within functional limits in all areas.  For the lower extremities, the VA clinician noted the Veteran did not own any assistive devices.  He exhibited good activity tolerance, sitting balance, and standing balance.  He did however request adaptive equipment for his bathroom due to difficulty getting into his shower / bathtub.  

The Board acknowledges certain potentially favorable evidence of record.  The December 2017 VA examination for housebound / aid and attendance (VA Form 21-2880) indicated that the Veteran requires a cane for locomotion – he can walk 100 feet.  (This was presumably due to the Veteran’s service-connected eye / vision disability).  However, this finding of the need for a cane is unsupported by all the other VA and private clinical evidence of record.  It is inconsistent with all the other clinical evidence of record, which rarely observed the Veteran walking with a cane or other assistive device.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (the Board must determine whether evidence is credible or worthy of belief).   The Board does not dispute the fact that the Veteran has mobility issues due to his service-connected eye / vision disability.  A February 2018 VA eye examiner commented the Veteran was having difficulty with mobility as the result of his service-connected eyes.  The Veteran is bumping into objects on his right side.  He also trips over objects – due to his service-connected blindness in the right eye.  He also is experiencing a lot of strain in his service-connected left eye.  His wife walks with him to help him maneuver at times.  Regardless, VA treatment records dated into 2018 fail to establish the “regular and constant use” of braces, crutches, canes, or a wheelchair, in order for the Veteran to ambulate.  Therefore, it is not shown that locomotion is precluded for purposes of entitlement to specially adapted housing.  See 38 C.F.R. § 3.809(c).  He is not deprived of his ability to avail himself of either of his lower extremities, absent the use of an assistive device.  See Jensen, 29 Vet. App. at 78-79.  

Accordingly, the preponderance of the evidence is against entitlement to specially adapted housing (SAH).  See 38 U.S.C. §§ 2101(a), 5107(b); 38 C.F.R. §§ 3.102, 3.809(b).  The claim is denied.

IX.  Special Home Adaptation (SHA)

Alternatively, if entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if the Veteran has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total (P&T) in nature.  Additionally, a special home adaptation grant is available for a veteran that has a (P&T) disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the trunk; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)).  38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b).  

Generally, a veteran will be provided one-time only assistance with a special home adaptation grant or specially adapted housing.  However, issuance of a special home adaptation grant before a veteran becomes eligible for specially adapted housing under 38 C.F.R. § 3.809 does not preclude a later grant for specially adapted housing.  38 C.F.R. § 3.809a(a).

In the present case, based on the evidence of record already discussed in detail above, the Veteran does not meet any of the criteria for a special home adaptation grant on a factual basis.  He has minimal limitations in his upper extremities.  In addition, there is no probative evidence of record that any loss of use of both hands, even if it did exist, is the result of his service-connected disabilities.  38 C.F.R. § 3.809a.  In fact, the Veteran is not service connected for any upper extremity disability.  Although he is service-connected for sarcoidosis with pulmonary involvement, there is no evidence he is service-connected for residuals of an “inhalation injury” (including, but not limited to, pulmonary fibrosis, asthma, and COPD.  Nor is he service-connected for burns of the trunk or extremities.  Finally, as already explained in great detail above in the section of the present Board decision addressing SMC, the Veteran has service-connected blindness in the right eye.  However, he is clearly not blind in his other service-connected left eye.  Therefore, the criteria for entitlement to a special home adaptation grant are not met.  Id. 

Accordingly, the preponderance of the evidence is against entitlement to a special home adaptation (SHA) grant.  See 38 U.S.C. §§ 2101(b), 5107(b); 38 C.F.R. §§ 3.102, 3.809a.  The claim is denied.

X.  Additional Compensation for Dependent Child

From December 11, 1980 to September 28, 1984, the Veteran had a combined rating of 70 percent for his service-connected disabilities.   

On April [REDACTED], 1982, the Veteran’s son (C.T.) was born.  

In a November 1984 rating decision, the AOJ granted service connection for the combination of sarcoidosis with various eye disabilities and assigned the 70 percent evaluation noted above.  Again, this 70 percent rating was effective from December 11, 1980 to September 28, 1984.  After September 28, 1984, the Veteran’s combined rating was reduced from 70 percent to 0 percent.  

In a November 5, 1984 VA notice letter (VA Form 20-8332-2), VA asked the Veteran to complete an attached Declaration of Marital Status (VA Form 21-686c).  The Veteran was advised he must submit this completed form within one year.

In a November 7, 1984 VA award letter, the Veteran was advised that veterans having a 30 percent or more service-connected evaluation may be entitled to additional compensation for a child under the age of 18.  

On January 9, 1985, the Veteran submitted a Declaration of Marital Status (VA Form 21-686c).  This was timely submitted within one year of the November 5, 1984 VA notice letter.  The Veteran provided information regarding his marriage to his then spouse.  He also provided information that his child (C.T.) was born on April [REDACTED], 1982, living at the same address as the Veteran.  The Veteran indicated C.T. was under 18 years of age.  There was a notation on the VA Form 21-686c that for any child under 18, the Veteran should also submit a certified copy of the public or church record of birth.

In a February 15, 1985 VA Request for Evidence Letter (VA Form 20-8995), VA requested that the Veteran submit a certified copy of his marriage certificate and a certified copy of the public record of birth or a copy of the record of baptism showing names of both parents for each of his children.  VA advised him to submit this information as soon as possible.  VA added that if not received within one year of this February 15, 1985 VA letter, any benefits the Veteran may be entitled to may not be paid for any period before the date of receipt.

No response was received from the Veteran within one year of the February 15, 1985 VA Request for Evidence Letter (VA Form 20-8995).  Therefore, he was not awarded any additional compensation for his dependent children (including C.T.). 

On April [REDACTED], 2000, C.T. turned 18 years of age.  

In a November 2015 Veteran statement on dependency, the Veteran requested a retroactive award of additional compensation for his dependent child (C.T.) for the time period from April [REDACTED], 1982 (date of birth of C.T.) to September 28, 1984 (combined rating reduced from 70 to 0 percent).  During this time period, the Veteran pointed out that he had a combined 30 percent rating or more and was therefore legally entitled to additional compensation for his dependent child.    

In the June 2017 VA decision on appeal, the AOJ determined that it could not add C.T. to the Veteran’s compensation award.  The AOJ found that although VA received a completed Declaration of Status of Dependents (VA Form 21-686c) in January 1985, VA did not receive a copy of the requested marriage certificate and birth certificate of C.T. from the Veteran within one year of the February 15, 1985 VA Request for Evidence Letter.  In other words, the Veteran did not respond with the necessary dependency information within one year.  Thus, his earlier January 1985 dependency claim for C.T. was “abandoned.” 

The Veteran appealed the AOJ’s denial of additional compensation benefits for C.T. to the Board.  

"Compensation" means a monthly payment made by VA to a veteran because of service-connected disability, or to a surviving spouse, child, or parent of a veteran because of the service-connected death of the Veteran.  38 U.S.C. § 101(13); 38 C.F.R. § 3.4.  

Any veteran in receipt of compensation at the rate of 30 percent or more is entitled to additional compensation for a spouse, children, and / or dependent parents.  38 U.S.C. §§ 1115, 1134, 1135; 38 C.F.R. § 3.4(b)(2).  The purpose of the statute is “to defray the costs of supporting the Veteran’s … dependents” when a service-connected disability is of a certain level hindering the Veteran’s employment abilities.  Sharp v. Shinseki, 23 Vet. App. 267, 272 (2009) quoting S. Representative No. 95-1054, at 19 (1978), U.S. Code Cong. & Admin. News 1978, p. 3465.  

An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law shall be payable from the effective date of such 30 percent or more rating, but only if proof of dependents is received within one year from the date of such rating.  38 U.S.C. § 5110(f). 

The effective date for additional compensation for a dependent will be the latest of the following: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member’s award.  38 C.F.R. § 3.401(b).  The “date of claim” for additional compensation for dependents is the date of the veteran’s marriage or birth / adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent’s existence, if evidence is received within a year of notification of such rating action.  38 U.S.C. § 5110(f), (n); 38 C.F.R. § 3.401(b)(1). 

The Court has held that the earliest possible effective date for additional compensation for dependents shall be the same date as the decision giving rise to such entitlement, provided that proof of dependent status is submitted within one year of notice of that decision.  Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009).

For compensation benefits, it is the responsibility of the recipient of VA compensation benefits to notify VA of all circumstances which will affect entitlement to receive the rate of the benefit being paid.  That is, the recipient of VA benefits must notify VA when he or she acquires knowledge that income, marital status, or dependency status will change or other circumstances which would affect his or her entitlement to receive, or the rate of, the benefit being paid.  38 C.F.R. § 3.660(a)(1).  

A “child” is defined as an unmarried person who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution.  38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(a) (emphasis added).  The allowance is generally discontinued when a dependent child turns 18, or when the child turns 23 if he or she is enrolled in school.  38 C.F.R. §§ 3.503, 3.667.

VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person.  38 U.S.C. § 5124(a), (b); 38 C.F.R. § 3.204(a)(1).

However, VA shall require the types of evidence indicated in §§ 3.205 through 3.211 where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question.  38 U.S.C. § 5124(c); 38 C.F.R. § 3.204(a)(2).  The age or relationship of a child can be established by a copy or abstract of the public record of birth or a copy of the church record of baptism.  38 C.F.R. § 3.209(a)-(b).

In short, if there is a question as to veteran's relationship with the child, in order to receive an additional compensation for a child, VA may require further proof of their relationship.  38 U.S.C. § 101(4); 38 C.F.R. §§ 3.204(a)(2), 3.209, 3.210.  

The Court has held that an award of dependency benefits is not contingent on the "mailing" of the required evidence, but rather its "receipt" by VA.  McColley v. West, 13 Vet. App. 553, 556-557 (2000).  

In the present case, the Veteran was in receipt of a combined 70 percent rating for his service-connected disabilities from December 11, 1980 to September 28, 1984.  His child (C.T.) was born on April [REDACTED], 1982.  In a November 7, 1984 VA award letter, the Veteran was advised that veterans having a 30 percent or more service-connected evaluation may be entitled to additional compensation for a child under the age of 18.  On January 9, 1985, the Veteran submitted a timely Declaration of Marital Status (VA Form 21-686c), within one year of the November 7, 1984 VA award.  However, this application did not include an attached copy of his marriage certificate or a copy of C.T.’s birth certificate, as specifically requested on the VA Form 21-686c.  In February 1985, VA requested that the Veteran submit a certified copy of his marriage certificate and a certified copy of the public record of birth or a copy of the record of baptism showing names of both parents for each of his children.  VA told him to submit this evidence within one year of the February 1985 VA letter, so that he could receive the additional compensation benefits for his dependent child.  Regardless, the Veteran failed to submit this information to VA until decades later.  In fact, no additional compensation for C.T. as a dependent child was ever awarded by VA, as C.T. turned 18 years of age on April [REDACTED], 2000.

The Veteran seeks a retroactive award of additional compensation for his dependent child (C.T.) for the time period from April [REDACTED], 1982 (date of birth of C.T.) to September 28, 1984 (date combined rating reduced from 70 to 0 percent).  During this time period, the Veteran pointed out that he had at least a combined 30 percent rating or more and was therefore legally entitled to additional compensation for his dependent child.  The Veteran initially claimed that he filed his Declaration of Status of Dependents (VA Form 21-686(c)) within one year of C.T.’s date of birth (April [REDACTED], 1982).  (A review of the claims file reveals no such application was received by VA within one year of C.T.’s birth).  Subsequently, the Veteran also asserted that when he filed his January 9, 1985 Declaration of Marital Status (VA Form 21-686c), there was no discrepancy or confusion regarding the information he provided pertaining to his marriage and his children.  He adds that he submitted to VA the birth certificate for C.T. around the time of his date of birth – April [REDACTED], 1982.  (A review of the claims file reveals no birth certificate for C.T. was received by VA within one year of C.T.’s birth).  See November 2015 Veteran statement; August 2016 Report of General Information (VA Form 27-0820); April 2018 Veteran statement and NOD (VA Form 21-0958).

Upon review of the evidence, additional compensation benefits for a dependent child (C.T.) for the time period from April [REDACTED], 1982 to September 28, 1984, is denied.  

In a November 1984 rating decision, the AOJ granted service connection for the combination of sarcoidosis with various eye disabilities and assigned the 70 percent evaluation noted above.  Again, this 70 percent rating was effective from December 11, 1980 to September 28, 1984.  The Veteran’s child (C.T.) was born on April [REDACTED], 1982.  Thus, from April [REDACTED], 1982 to September 28, 1984, the Veteran was first eligible to receive additional compensation for a dependent child, as a 30 percent or more combined rating had been awarded by VA.  See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2).  

In a November 7, 1984 VA award letter, the Veteran was advised that veterans having a 30 percent or more service-connected evaluation may be entitled to additional compensation for a child under the age of 18.  On January 9, 1985, the Veteran submitted a timely Declaration of Marital Status (VA Form 21-686c).  The Veteran provided information regarding his marriage to his then spouse.  He also provided information that his child C.T. was born on April [REDACTED], 1982, living at the same address as the Veteran.  However, the Veteran did not provide the place of C.T.’s birth as required by VA regulation.  See 38 U.S.C. § 5124(a), (b); 38 C.F.R. § 3.204(a)(1).  Since there was a question as to the Veteran’s relationship with C.T., in order to receive an additional payment for a child, VA required further documentary proof of their relationship, such as a birth certificate or baptismal record.  See 38 U.S.C. § 101(4); 38 C.F.R. §§ 3.204(a)(2), 3.209, 3.210.  Moreover, there was a notation on the January 9, 1985 VA Form 21-686c advising the Veteran that for any child under 18, he should also submit a certified copy of the public or church record of birth. 

One month later, in a February 15, 1985 VA Request for Evidence Letter (VA Form 20-8995), VA requested that the Veteran submit a certified copy of his marriage certificate and a certified copy of the public record of birth or a copy of the record of baptism showing names of both parents for each of his children.  VA advised that if this documentation was not received within one year of the date of this February 15, 1985 letter, any benefits the Veteran may be entitled to may not be paid for any period before the date of receipt.  VA added that the information requested is authorized by existing VA law and is considered relevant and necessary to determine entitlement to the maximum benefits applied for under the law.  Regardless, no response was received from the Veteran within one year of the February 15, 1985 VA Request for Evidence Letter (VA Form 20-8995).  Thus, he was not awarded any additional compensation for his dependent children, including C.T., for the time period from April [REDACTED], 1982 to September 28, 1984.

In the absence of clear evidence to the contrary, it is presumed that VA properly mailed notice of a VA decision to an appellant in care of his representative in the normal course of business.  See, e.g., Kuo v. Derwinski, 2 Vet. App. 662, 665 (1992).  The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including for instance the AOJ’s mailing of notice of a VA medical examination.  Jones v. West, 12 Vet. App. 98, 100-02 (1998).  But in order for this presumption to attach, VA must provide notice to the latest address of record for the claimant.  Crain v. Principi, 17 Vet. App. 182, 186 (2003).  In addition, according to VA regulation, notification for VA purposes is written notice sent to the claimant’s last address of record.  38 C.F.R. § 3.1(q).  This presumption is not absolute and may be rebutted with “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Id.

However, an appellant’s bare statement of non-receipt of mail, without more, is not the type of “clear evidence” that can rebut the presumption of regularity.  The presumption of regularity may be rebutted where there is (1) evidence that VA used an incorrect address on the mailing, or (2) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the decision.  See, e.g., Davis v. Principi, 17 Vet. App. 29, 37 (2003); Clark v. Principi, 15 Vet. App. 61, 63 (2001).  But in the normal course of events, it is generally the Veteran's burden to keep VA apprised of his whereabouts.  If he does not do so, VA is not obligated to “turn up heaven and earth to find him.”  Hyson v. Brown, 5 Vet. App. 262, 265 (1993).  

VA sent the February 15, 1985 VA Request for Evidence Letter (VA Form 20-8995) to the Veteran, in which VA requested that the Veteran submit a certified copy of his marriage certificate and a certified copy of the public record of birth or a copy of the record of baptism showing names of both parents for each of his children.  This VA letter was sent to the Veteran’s latest address of record at that time.  VA sent this letter to the correct address.  It was not returned as undeliverable by the U.S. Postal Service.  The Veteran did not notify VA of any change of address at that time.  Further, the evidence does not show, nor does the Veteran contend, that there were other possible and plausible addresses available to the VA at the time of mailing.  In fact, the Veteran has never denied receiving this letter.  Thus, the Veteran is presumed to have received the appropriate notification.  Clear evidence was not presented to rebut the presumption of regularity.  

In addition, the Veteran initially claimed that he filed his Declaration of Status of Dependents (VA Form 21-686(c)) within one year of C.T.’s date of birth (April [REDACTED], 1982).  (A review of the claims file reveals no such application was received by VA within one year of C.T.’s birth).  Also, he said he submitted to VA the birth certificate for C.T. around the time of his date of birth – April [REDACTED], 1982.  (A review of the claims file reveals no birth certificate for C.T. was received by VA within one year of C.T.’s birth).  In summary, there is no evidence that VA failed to properly fulfill its duty in handling any mail or other correspondence that would have been submitted by the Veteran.  The Veteran’s allegations to the contrary are unsupported by the evidence of record and are insufficient to rebut the presumption of regularity.  None of the Veteran’s purported submissions are of record.  Therefore, the Board finds that the Veteran’s assertions concerning his alleged submissions to VA regarding dependency documentation for C.T. in the early 1980s are not credible.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (the Board must determine whether evidence is credible and probative).  

In summary, despite being advised to do so multiple times, the Veteran did not provide adequate proof of dependent status for his child (C.T.), within one year of the February 15, 1985 VA Request for Evidence Letter (VA Form 20-8995).  In fact, the necessary information pertaining to C.T. was not submitted until decades later.   Accordingly, the Veteran is not entitled to additional compensation benefits for a dependent child (C.T.) for the eligible time period from April [REDACTED], 1982 to September 28, 1984.  See 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401(b).

If a claimant submits an incomplete application for VA benefits, VA is required to notify the claimant of any evidence necessary to complete the application. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.158(a).  If VA requests evidence, including information with regard to dependency, but such evidence is not furnished within a year of the notification, the claim is deemed abandoned, and no benefits may be paid or furnished based upon the application.  38 U.S.C. § 5103(a); 38 C.F.R. §§ 3.204, 3.158(a).  After the expiration of the one-year period, further action will not be taken unless a new claim is received.  38 C.F.R. § 3.158(a).  If entitlement to the benefits sought is established after the expiration of the one-year period based on submission of the requested evidence, payment of the benefits may not commence earlier than the date of filing of the new claim.  Id.  In the present case, the Veteran in effect “abandoned” his January 9, 1985 Declaration of Marital Status (VA Form 21-686c) by failing to respond to VA’s request for additional dependency information for C.T. within one year of the request.  The "duty to assist" is not a one way street; a claimant cannot stand idle when the duty is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991).  The Court had held that "VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gober v. Derwinski, 2 Vet. App. 470, 472 (1992).  

Because the law in this case, and not the facts, is dispositive of the issue, the Veteran has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Accordingly, additional compensation benefits for a dependent child (C.T.) for the time period from April [REDACTED], 1982 to September 28, 1984, is denied.  

REASONS FOR REMAND

Service connection for a left shoulder disorder, to include as secondary to service-connected sarcoidosis with pulmonary involvement, is REMANDED.

First, the Veteran should be scheduled for the appropriate VA examination to determine whether the Veteran’s current left shoulder disorder was incurred during active duty or is secondary to his service-connected sarcoidosis with pulmonary involvement.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  During the course of the appeal, the Veteran was not afforded a VA examination and opinion despite clinical confirmation of a current left shoulder disorder, but he has submitted lay and medical evidence indicating that his current left shoulder disorder may be the result of his military occupational specialty (MOS) duties as an infantryman during his period of active duty in the Army from 1977 to 1980.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (discussing circumstances when the duty to assist to provide a VA examination has been triggered by way of an “indication” of a nexus to service).  In addition, a November 2016 VA ophthalmology outpatient note mentions that his left shoulder pain may be the result of his service-connected sarcoidosis with pulmonary involvement.  If a medical opinion does not address the secondary aspect of the claim, it is not sufficient for rating purposes.  Robinson v. Mansfield, 21 Vet. App. 545 (2008).  Therefore, the AOJ should secure a VA examination and opinion addressing both direct and secondary service connection for the Veteran’s left shoulder disorder. 

Second, since the service connection issue for a left shoulder disorder is already being remanded to the AOJ for further development, the Board sees the Veteran’s VA treatment records on file from Nashville and Tennessee Valley VA Medical Centers (VAMCs) date to September 2018.  If the Veteran has had any additional treatment at the VA, these records should be obtained.  

The left shoulder issue is REMANDED for the following action:

1. The AOJ should obtain the Veteran’s VA treatment records from the Nashville and Tennessee Valley VAMCs dated from September 2018 to the present and associate them with the claims file.  

2. After completion of step 1, the AOJ should schedule the Veteran for the appropriate VA DBQ examination to determine the etiology of the Veteran’s current left shoulder disorder(s).  Access to the claims file must be made available to the VA examiner for review.  The examination should include any diagnostic testing or evaluation deemed necessary.  The Veteran must be interviewed.  The VA examiner must address the Veteran’s relevant lay assertions, and if necessary, address whether the Veteran’s lay assertions are consistent or inconsistent with the medical history and data.  Finally, the VA examiner must provide a clear explanation for the medical opinion.

Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the left shoulder.  

THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: 	

(a) Identify all current left shoulder disorders the Veteran has, to include osteoarthritis / degenerative changes, tendinitis / tendinopathy of the rotator cuff, bursitis, a possible strain or tear, and adhesive capsulitis, among any others diagnosed in the record.

(b) Is it at least as likely as not (i.e., 50 percent or more probable) that any current left shoulder disorder is causally or etiologically related to the Veteran’s military service from 1977 to 1980?  Specifically, the VA examiner should address the Veteran’s contention that his in-service duties in his military occupational specialty (MOS) as an infantryman caused left shoulder problems to develop over time, due to carrying large weapons.  

(c) Is it at least as likely as not (i.e., 50 percent or more probable) that any current left shoulder disorder is caused by, proximately due to, or the result of his service-connected sarcoidosis with pulmonary involvement?  

(d) Is it at least as likely as not (i.e., 50 percent or more probable) that any current left shoulder disorder is “aggravated by” or “worsened by” his service-connected sarcoidosis with pulmonary involvement?  [Aggravation is defined as a worsening of the disability beyond natural progression.]  The VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale.  That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate.  For example, a disability can theoretically aggravate another disorder, even if it did not cause it.  

(e) In rendering the above opinions, the VA examiner should consider the following evidence:

•	With regard to lay evidence, the Veteran has asserted that he experienced left shoulder pain and tenderness while on active duty from 1977 to 1980 due to carrying heavy weapons as an infantryman.  See Veteran’s reported history at March 2017 VA neurology consult report and March 2017 VA neurology attending admission evaluation note.  Also, the Veteran has asserted that his service-connected sarcoidosis with pulmonary involvement caused or aggravated his left shoulder disorder because the elevated white blood cells cause brittle bones and breakage at any time. 

•	STRs dated from 1977 to 1980 are negative for any complaint, treatment, or diagnosis of a left shoulder disorder.  At his February 1980 STR separation examination, his upper extremities were normal.  At his February 1980 STR report of medical history at separation, the Veteran denied a history of a painful or trick shoulder or elbow or swollen or painful joints or bursitis.  

•	Post-service, April 1981 and October 1984 VA examinations revealed normal musculoskeletal and neurological systems with no complaints or functional deficits.  VA treatment records dated in the 1980s and 1990s made no mention of a left shoulder problem. 

•	Post-service, the first clinical evidence of left shoulder complaints was from a December 2002 VA rheumatology note, at which time the Veteran reported shoulder discomfort on occasion but denied any previous shoulder injuries.  It was noted that the Veteran worked as a machine operator.  The assessment was “probable osteoarthritis.”

•	Post-service, a December 2014 private emergency room report documented left shoulder pain worsening over the past week.  This occurred after the Veteran was engaged in home construction.  X-rays of the left shoulder dated in December 2014 were normal.  

•	Post-service, a January 2015 MRI of the left shoulder revealed tendonitis / tendinopathy of the rotator cuff and bursitis.  Other diagnoses for the left shoulder in the record from 2015 to 2018 include osteoarthritis / degenerative changes, a possible strain or tear, and adhesive capsulitis.  The Veteran has been treated with pain medications and left shoulder corticosteroid injections. 

•	Post-service, beginning in January 2015, VA orthopedic surgery consults and VA outpatient notes document the Veteran’s report of a one to two month history of left shoulder pain which is a constant, sharp, aching type pain that radiates to the left elbow and also extends into the lateral aspect of the left side of his neck.  The impression was left shoulder acute tendinitis vs. strain injury, as it may be related to lifting at work.  It was further noted the Veteran works as a modular home fabricator, which involves lifting, riveting, and use of a nail gun and power tools.

•	Post-service, with regard to evidence of a secondary relationship, a November 2016 VA ophthalmology outpatient note assessed “+) shoulder pain nerve sarcoidosis.”  No rationale was provided. 

•	Post-service, a January 2017 VA neurology addendum note from a VA neurologist stated his opinion and the opinion of an earlier VA orthopedist that given that an EMG failed to show evidence of left cervical radiculopathy or left peripheral nerve entrapment, and given that an MRI of the cervical spine was unremarkable, it is much more likely that the Veteran’s left shoulder pain is musculoskeletal rather than neurogenic.  Similarly, a March 2017 VA neurology consult report and March 2017 VA neurology attending admission evaluation note found that the Veteran was had two plus years of left shoulder pain radiating to the left arm with an essentially normal nerve 

 

conduction of the left arm and an unremarkable MRI of the cervical spine.

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, Counsel

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.