Citation Nr: 21002385 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-39 239 DATE: January 13, 2021 ORDER Entitlement to service connection for lymphedema is granted. REMANDED Entitlement to an increased rating in excess of 60 percent for prostate cancer with erectile dysfunction, prior to April 13, 2018, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The preponderance of the evidence reveals that the Veteran’s lymphedema is secondary to his service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection for lymphedema have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to August 1975. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 and August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the Veteran’s claim for an increased rating for prostate cancer for the issuance of a supplemental statement of the case (SSOC). In September 2019, the RO granted a 100 percent rating for the Veteran’s prostate cancer, effective April 13, 2018. As this grant does not represent a total grant of benefits sought on appeal, the claim for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran tried to opt into the Appeals Modernization Act (AMA) system several times during the appeal period. First, in August 2019, the Veteran filed a VA Form 20-0996, Decision Review Request: Higher-Level Review, for his claims for service connection for sleep apnea and lymphedema as well as his claim for a TDIU. However, an August 2019 correspondence from the Agency of Original Jurisdiction (AOJ) notified the Veteran that his request for higher-level review could not be accepted as the issues were already on appeal. Second, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim, for his claims for service connection for sleep apnea and lymphedema as well as his claim for a TDIU in September 2019. However, in a January 2020 VA correspondence, the AOJ notified the Veteran that because his representative did not check the box for “opt-in from SOC/SSOC” or submit a letter requesting withdrawal of the legacy appeal, he did not meet the conditions required to opt the issues into the supplemental claim lane under the AMA. Accordingly, as the AOJ found that the Veteran’s opt-in request was not valid per their policy, the appeal of those issues must proceed under the legacy appeals system. Moreover, the Board notes that the Veteran filed a VA Form 20-0996, Decision Review Request: Higher-Level Review, for his claim for an increased rating for prostate cancer in September 2020. However, the Board notes that this opt-in to the AMA is invalid, as the appeal had already been properly certified to the Board under the legacy appeals system. Consequently, the Veteran’s claim for an increased rating for prostate cancer must also proceed under the legacy appeals system. Service Connection The Board notes that a January 2020 VA examination and medical opinion regarding the Veteran’s lymphedema were added to the claims file after the September 2019 statement of the case (SOC) and after the appeal was certified to the Board. Although there is no waiver of initial AOJ consideration, in light of the full grant of benefit sought on appeal with respect to the lymphedema service connection claim herein, the Board finds that there is no prejudice to the Veteran in proceeding with adjudication of the issue. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. Based on all the available evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for lymphedema is warranted. Here, the January 2020 VA examiner opined that the Veteran’s lymphedema was caused by his prostate cancer treatment. She reasoned that the Veteran’s prostate cancer was treated with radiation and according to medical research radiation can be the cause of lymphedema in the lower extremities. The Board notes that there is no contrary competent medical opinion of record. In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s lymphedema is secondary to his service-connected prostate cancer. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). REASONS FOR REMAND Appellants are entitled to initial review by the AOJ of evidence added to the claims file by VA, and waiver of such review may not be presumed. See 38 C.F.R. § 20.1304. Here, since the September 2019 SOC and October 2019 SSOC, additional VA medical records have been added to claims file, to include a January 2020 VA medical examination regarding the Veteran’s prostate cancer and a January 2020 VA medical opinion regarding the Veteran’s sleep apnea. The January 2020 VA examinations were conducted after the appeal was certified to the Board, and the evidence has not yet been considered by the AOJ. In February 2020, a letter was sent to the Veteran offering the option to waive initial AOJ consideration. To date, no response has been received. Accordingly, the Veteran’s claims for an increased rating for prostate cancer and service connection for sleep apnea must be remanded so that an SSOC may be issued that considers the additional VA generated evidence. Moreover, as the Veteran’s claim for TDIU is inextricably intertwined with his claim for an increased rating for prostate cancer, consideration of the claim for a TDIU must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: The Veteran’s claims should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a SSOC and afforded the requisite opportunity to respond. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate 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.