Citation Nr: 21062815 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-42 044 DATE: October 12, 2021 ORDER An earlier effective date prior to March 2, 2016, for the grant for posttraumatic stress disorder (PTSD) is denied. The petition to reopen the claim for service connection for a stroke disability is denied and the appeal is dismissed. Service connection for obstructive sleep apnea (OSA), to include as due to PTSD is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The record includes no communication from the Veteran received earlier than March 2, 2016, which constitutes either a formal or informal claim of service connection for PTSD. 2. Additional evidence has been received which is cumulative or redundant of the evidence of record at the time of the July 2012 rating decision and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a stroke disability. 3. The competent and probative evidence shows that the Veteran's OSA, to include as due to PTSD, is at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 2, 2016, for service connection for PTSD are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 2. The criteria for reopening the previously denied claim of service connection for a stroke disability are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for OSA, to include as due to PTSD, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1968. The Veteran was awarded the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision (for the issues of service connection for OSA, hypothyroidism, and a stroke disability, an increased rating for hearing loss, and a TDIU), and a June 2016 rating decision (for the issues of an earlier effective date for PTSD and service connection for a right knee disability) of a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board observes that the Veteran requested a videoconference hearing before the Board in an August 2017 VA Form 9 and a May 2018 VA Form 9. However, he submitted a written statement to cancel the Board hearing scheduled in July 2020. See 7/1/2020 Correspondence. As such, the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(e) (2020). Additionally, in April 2018 a statement of the case (actually label as a supplement statement of the case) adjudicated the claim for service connection for a left knee disability after report of general information clarified the Veteran's February 2017 notice of disagreement which list service connection for the right knee twice. However, the Veteran did not file a timely substantive appeal, Form 9, to perfect his appeal. As such, the claim for service connection for a left knee disability is not on appeal before the Board. Finally, a July 2021 rating decision granted service connection for hypothyroidism, an issue listed on June 2017 statement of the case and perfected via an August 2017 VA Form 9. As such, this matter is no longer on appeal due to the full grant of the service connection benefit sought and it will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). 1. An earlier effective date prior to March 2, 2016, for the grant for PTSD. Earlier Effective Date Generally, the effective date for service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). A claim means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA. 38 C.F.R. § 3.1(p) (2017). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. If a formal claim is received after one year of its receipt, then the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. The effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). For background, the June 2016 rating decision granted service connection for PTSD, and assigned an initial 70 percent rating, effective March 2, 2016. The rating decision indicated the effective date was established the day VA received a complete claim for compensation benefits for PTSD. After careful review of the claims file, the record does not show that the Veteran raised the issue of service connection for PTSD at any point prior to March 2, 2016. The Board has not been able to find any communication indicating an intent to apply for benefits based on PTSD and/or a psychiatric disorder. See Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020) (holding that "a veteran's formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality"). By way of procedural history, the Board notes that on March 2, 2016, the Veteran filed a formal claim for PTSD. See 3/2/2016 VA 21-526EZ. As noted above, the RO granted service connection for PTSD in a June 2016 rating decision with an initial 70 percent rating, effective March 2, 2016. Subsequently, the Veteran filed a notice of disagreement stating entitlement to an earlier effective date for PTSD. See 2/17/2017 NOD. Insofar as the Veteran is asserting that his awards of service connection for PTSD should be awarded an earlier effective date, the Board notes that VA law and regulations do not allow for such an effective date in the present case. For cases such as this one, VA law and regulations mandate that the effective date of a grant of service connection be the date on which the claim was received. In this case, that date is March 2, 2016, the date on which the Veteran submitted his claim of service connection for PTSD, which was well beyond a year from discharge from service. For these reasons, the Board concludes that an earlier effective date for the grant of service connection for PTSD is not warranted. 2. New and material evidence to reopen the claim for service connection for a stroke disability. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran initially filed his claim for a stroke disability in March 2011. A July 2012 rating decision denied his claim. It noted a VA examiner found that the Veteran's stroke was less likely than not caused by his heart disability and that the available scientific and medical evidence did not support the conclusion that the stroke was associated with herbicide exposure. A substantive appeal was not perfected and there is no indication new and material evidence was received within a year of this decision. As such the July 2012 rating decision became final. 38 U.S.C. § 7104. The current appeal began when the Veteran submitted an informal claim in February 2014. Since at that time his decision was final, he needed to submit new and material evidence to reopen the claim. The Board finds that the Veteran did not submit new and material evidence to reopen his claim. The evidence received since the time of the July 2012 rating decision includes post-service treatment records from 2007 regarding his stroke. This evidence is new, as it was not previously in the record. However, the new evidence is not material, as it does not raise a reasonable possibility of substantiating the Veteran's claim for service connection. Therefore, the Veteran's claim to reopen the claim for service connection for a stroke disability is denied. The Veteran's post-service treatment records include complaints and treatment for a stroke disability. However, these medical records do not indicate that the stroke disability is linked to active duty. The new evidence does not go to a previously unestablished service element, here, a nexus. Instead, the new evidence continues to support a previously established element of a current disability by showing that the Veteran had a stroke and residuals. In addition, the 2012 rating decision acknowledged the Veteran's contentions that his stroke disability is due to his service-connected heart disability and to exposure to herbicide agents. Also, the 2012 rating decision noted that the only medical opinion regarding nexus was the May 2012 VA examination, which concluded that the stroke disability was not due to military service. Furthermore, the Board notes that the May 2012 VA examination is arguably inadequate because the examiner failed to consider the Veteran's contentions that his stroke disability was due to exposure to herbicide agents. Additionally, the examiner failed to render a complete opinion, since direct service connection was not addressed. Unfortunately, the new evidence is not relevant to the adequacy of the May 2012 VA examination. The Board must consider all evidence of record, including any new VA examinations obtained by the RO, when determining whether a claim should be reopened, but the duty to ensure that an adequate examination was provided, as set forth in Barr v. Nicholson, 21 Vet. App. 303 (2007) is not applicable unless a claim is reopened for consideration on the merits. Once the Board decides that a claim is not be reopened, the conditional duty to provide a new VA examination is extinguished. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007). Because the Board determines that the Veteran has not submitted new and material evidence, the adequacy of the above examination is moot, and there is no need to afford the Veteran a new VA examination at this time. It is the Veteran's responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a). The Veteran has been afforded the opportunity to submit new and material evidence and has failed to do so. As such, since new and material evidence has not been received, the Veteran's claim to reopen the claim for entitlement to service connection for a stroke disability is denied. 3. Service connection for OSA, to include as due to PTSD. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for OSA as due to his service-connected PTSD. See 1/31/2018 Form 9. The Veteran's wife stated that the Veteran has always had trouble sleeping since he came back from Vietnam. Moreover, the Veteran's wife asserted that she would wake up in the middle of the night to find that the Veteran had stopped breathing and she would wait for him to start breathing again. See 10/2/2020 Hearing Transcript, at pages 22 and 23. At the outset, the Board notes that the Veteran had a polysomnography, which showed a diagnosis of moderate to severe OSA. See 3/19/2014 Medical Treatment Record Government Facility. As such, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. The record showed that service connection is in effect for PTSD, thus a claim for secondary service connection is applicable. The Board finds that the competent evidence of record establishes a secondary service connection claim. Thus, the second element of service connection is also met. During a January 2018 VA examination report, the clinician opined that it was less likely than not that the Veteran's OSA disability was due to or aggravated by the service-connected PTSD. As rationale, the clinician stated that there is no plausible physiologic mechanism by which mental health conditions including PTSD would cause OSA. Additionally, he stated that the general medical literature does not indicate mental health conditions as a cause of OSA. Further, regarding the article submitted by the veteran as evidence, the clinician stated that it is a statistical study, and though it appears to indicate an increase in OSA screening scores among some veterans of Operation Enduring Freedom/Operation Iraqi Freedom/Operation New Dawn, it does not indicate any plausible medical reason for the findings. Moreover, the clinician stated that advancing age, male gender, and obesity are the major risk factors for development of OSA. The Board finds the January 2018 VA opinion incomplete. The clinician did not cite to specific medical evidence of record of this Veteran to justify the conclusion. Additionally, the clinician did not provide an opinion on whether OSA, in whole or part, had its onset in service. Further, the clinician did not consider the Veteran's wife's contentions that the Veteran has always had trouble sleeping since he came back from Vietnam. Moreover, the Veteran's wife asserted that she would wake up in the middle of the night to find that the Veteran had stopped breathing and she would wait for him to start breathing again. Finally, the clinician did not discuss the private opinion on file from Dr. M.B.S., M.D. (discussed below). In addition, the Veteran's authorized attorney representative argued that the examination was not competent. See 1/31/2018 Form 9. As such, the Board finds this opinion to have some probative value. The Veteran provided a positive nexus opinion from Dr. M.B.S. The physician opined that it is more likely than not that the Veteran's OSA is due to his service-connected PTSD. As rationale, he cited numerous medical studies and concluded that PTSD directly causes sleep apnea by negatively impacting the normal neurohumoral feedback mechanism within the central nervous system. He further stated that heightened arousal disorders, such as PTSD, cause abnormal catecholamine and serotonin metabolism within the brain, which in turn, cause sleep apnea. See 7/31/2019 Medical Treatment Record Non-Government Facility, at pages 1 through 3. The Board finds this opinion to have some probative value. When resolving reasonable doubt in favor of the Veteran, and after review of the competent and probative evidence, the Board finds that it is at least as likely as not that the Veteran has a current OSA disability that was proximately caused by his service-connected PTSD. 38 C.F.R. § 3.310(a). There is a positive medical statement that links the Veteran's OSA disability to his service-connected PTSD and it has probative value and a rationale adding to its weight. As such, the Board finds that service connection for OSA, to include as due to PTSD, is warranted. 38 C.F.R. §§ 3.102. REASONS FOR REMAND 1. Service connection for a right knee disability. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for a right knee disability. The record showed that the Veteran was diagnosed with right knee degenerative arthritis and internal derange of the right knee. See 4/22/2016 C&P Examination; see also 5/23/2016 Medical Treatment Record Non-Government Facility, at page 10. Regarding the in-service incident, the Veteran contends that while in Vietnam, he wore personal combat equipment, which often exceeded 150 pounds. Additionally, he contends that he damaged his knees as a result of jumping from hovering helicopters on to uneven terrain with over 100 pounds on his back and not being able to see if he was landing on rocks or mud, which is the "bio-mechanical equivalent of a parachute landing." Further, he contends that the Veteran has 26 military parachute jumps in his log. See 5/14/2018 Form 9; see also 10/2/2020 Hearing Transcript, at page 16. The record showed that the Veteran underwent a VA examination in April 2016. At the conclusion of the examination, the reviewing clinician opined that the Veteran's right knee disability was less likely than not incurred in or caused by service. As rationale, the reviewing clinician stated that the Veteran's service treatment records are silent for a right knee injury. Additionally, the examiner stated that the first documentation of a knee disability was in 2002, which was 32 years after active duty. Further, the examiner stated that there is no documentation of a chronic knee injury until the 2015 diagnosis of degenerative arthritis, which is common in the late sixth decade of life. See 4/22/2016 C&P Examination. However, the Board finds this opinion inadequate because it does not show adequate consideration of all relevant evidence, to include the Veteran's contentions that he wore personal combat equipment, which often exceeded 150 pounds. Additionally, he contends that he damaged his knees as a result of jumping from hovering helicopters on to uneven terrain with over 100 pounds on his back and not being able to see if he was landing on rocks or mud, which is the "bio-mechanical equivalent of a parachute landing." Further, he contends that the Veteran has 26 military parachute jumps in his log. Moreover, the examiner did not consider the article titled "Injuries in military parachuting: a prospective study of 4499 jumps." See 5/31/2016 Correspondence. As such, the Board finds that an addendum opinion that considers the entire record and addresses any relationship between the Veteran's right knee disability and service is warranted. 2. A compensable rating for left ear hearing loss. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his left ear hearing loss. In this regard, the Veteran most recently underwent a VA examination in June 2014. However, since such time, recent evidence uploaded to the claims file tends to show that the Veteran and his wife reported increased and additional symptomatology regarding his left ear hearing loss. With respect to his left ear hearing loss, the Veteran's wife reported that the Veteran's hearing has been "messed up" since he came home. Additionally, she reported that the Veteran's hearing loss has caused him difficulty with his activities of daily living, such as not being able to hear the phone ring. Further, she reported that they have had "some minor aggravations from time to time" due to occasional communication problems. See 10/2/2020 Hearing Transcript, at page 27. Therefore, as the evidence suggests that the Veteran's left ear hearing loss symptomatology may have increased since the June 2014 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of his service-connected left ear hearing loss disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 3. A TDIU. With respect to a TDIU, the Board finds that this claim is inextricably intertwined with his newly granted claim for service connection for OSA and the initial rating(s) to be assigned. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact' upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). Therefore, the adjudication of TDIU is deferred. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding VA records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. After completion of step #1, return the claims file to the examiner who conducted the April 2016 VA knee and lower leg conditions examination and authored the opinion. The clinician is to review the virtual file, including a copy of this Remand. After review of the claims file, the examiner is to specifically address: (a.) Whether it is at least as likely as not that the Veteran's current right knee disability is related to an in-service injury, event, or disease. **In doing so, the examiner must address the Veteran's contentions that while in Vietnam, he wore personal combat equipment, which often exceeded 150 pounds. Additionally, he contends that he damaged his knees as a result of jumping from hovering helicopters on to uneven terrain with over 100 pounds on his back and not being able to see if he was landing on rocks or mud, which is the "bio-mechanical equivalent of a parachute landing." Further, he contends that the Veteran has 26 military parachute jumps in his log. See 5/14/2018 Form 9; see also 10/2/2020 Hearing Transcript, at page 16. Moreover, the examiner must consider the article titled "Injuries in military parachuting: a prospective study of 4499 jumps." See 5/31/2016 Correspondence.** (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements. Note: A full credibility determination will be made at a later date, if needed, once additional evidence has been added to the claims file.) A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical, should be considered. If medical literature is reference, please provide a copy of it or a full citation that allows general access. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 3. After completion of step #1, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected left ear hearing loss disability, to include a description of the functional impact of his hearing loss. The record and copy of this Remand must be made available to the examiner, and all indicated tests should be completed. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.