Citation Nr: 21066876 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-29 651 DATE: November 2, 2021 ORDER On May 19, 2016, the Veteran timely filed notice of disagreement to the April 2015 rating decision by the RO which denied service connection for sleep apnea; to this extent the appeal is granted. REMANDED Entitlement to service connection for left lower extremity restless leg syndrome to include as caused or aggravated by service- connected disabilities is remanded. Entitlement to service connection for right lower extremity restless leg syndrome to include as caused or aggravated by service- connected disabilities is remanded. Entitlement to service connection for a deviated septum to include as caused or aggravated by sinusitis and/or allergic rhinitis is remanded. Entitlement to a compensable rating for sinusitis is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to temporary total disability for a December 19, 2007 surgical procedure is remanded. Entitlement to a rating in excess of 10 percent for a right hip disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In an April 2015 rating decision, the RO denied the Veteran's claim of service connection for sleep apnea. 2. The RO attempted to provide notice of the April 2015 rating decision to an address in Alexandria, Virginia, but it was returned undelivered in May 2015. 3. There are no subsequent written attempts by the RO to send notice of the April 2015 rating decision to the Veteran. 4. In April 2015, the Veteran did not reside at the Alexandria, Virginia address, but resided in Kingwood, Texas. 5. In July 2015, the Veteran learned of the April 2015 denial of his service connection claim for sleep apnea and received notice on August 16, 2015. 6. The Veteran filed a notice of disagreement on May 19, 2016 which is within one year after receiving notice of the April 2015 rating decision denying service connection for sleep apnea. CONCLUSION OF LAW The Veteran filed a timely notice of disagreement to the April 2015 rating decision denying the claim of service connection for sleep apnea, and the Board therefore has appellate jurisdiction to review the claims. 38 U.S.C. § 7105 (d)(3)(5); 38 C.F.R. §§ 3.1(q), 3.103, 20.203, 20.302 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1979 to July 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of April 2016 and May 2017 rating decisions and a July 2016 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. 1. Whether the Veteran's May 19, 2016 notice of disagreement is timely Whenever VA, here the RO, makes a determination on a Veteran's claim, the Veteran has a right to receive written notice of the decision made in his claim as well as other procedural notice such as the procedures and time limit to initiate an appeal. 38 C.F.R. § 3.103. The RO must send the written notice to the Veteran's last address of record. 38 C.F.R. § 1(q). For appeals filed before February 19, 2019, an appeal consists of a timely notice of disagreement in writing and, after a statement of the case has been furnished, a timely substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200 (2015). A claimant must file a notice of disagreement within one year from the date that the agency mails notice of the determination. Otherwise, that determination will become final. 38 C.F.R. § 20.302 (2015). The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.203 (b) (2015). Whether a notice of disagreement or a substantive appeal has been filed on time is an appealable issue. 38 C.F.R. §§ 19.34, 20.101(c). In an April 2015 rating decision, the RO denied the Veteran's claim for service connection for sleep apnea. It attempted to provide written notice to the Veteran along with notification of his appellate rights in April 2015 by mail sent to an Alexandria, Virginia address. The US Post Office returned the notice undelivered in May 2015. The record does not reflect why the RO sent notice to the Alexandria, Virginia, address. VA sent other correspondence to the Veteran both before and after the April 2015 rating decision to a Kingwood, Texas address. The Post Office did not return Kingwood, Texas, correspondence as undeliverable. Further, the Veteran reported for a VA examination in April 2015 for sinusitis and rhinitis in Texas. The Veteran testified that he had not lived at the Alexandria, Virginia address for some time before April 2015. He moved to the Kingwood, Texas in April 2014. He first unofficially learned of the April 2015 rating decision when he asked someone at VA. He stated he then received "official notice" in August 2015. The Board interprets "official notice" to mean "written notice" as used in VA regulations. There are no subsequent attempts by VA to send notice of the April 2015 rating decision after the initial attempt. The Veteran then filed a notice of disagreement in May 2016 for his sleep apnea claim. By a July 2016 letter, the RO notified the Veteran that the May 2016 notice of disagreement was untimely. The Veteran now contends he filed a timely notice of disagreement within one year after he received notice of the rating decision denying service connection for sleep apnea. Based upon the foregoing evidence, the Board finds the Veteran has filed a timely notice of disagreement concerning the sleep apnea claim. Clearly, the Veteran did not receive the attempted April 2015 notification as the Post Office returned the notification as undeliverable. Further, the April 2015 notification did not meet regulation requirements that notice be sent to the Veteran's last known address. At the time the RO issued the April 2015 rating decision, the Veteran's last known address was in Kingwood, Texas, not Alexandria, Virginia. The record does not contain any subsequent attempts by the RO to provide notification. The Board finds the Veteran credible that his earliest notification occurred in July 2015 with written notification in August 2015. He thus filed a notice of disagreement within one year after he received notification that the RO denied his sleep apnea claim. 38 C.F.R. § 20.302 (2015). Accordingly, as the Veteran has filed a timely notice of disagreement, the Board has jurisdiction on the merits as to whether the Veteran is entitled to service connection for sleep apnea. The next step is addressed in the REMAND section below. REASONS FOR REMAND 1. Entitlement to service connection for left lower extremity restless leg syndrome to include as caused or aggravated by service- connected disabilities is remanded. 2. Entitlement to service connection for right lower extremity restless leg syndrome to include as caused or aggravated by service- connected disabilities is remanded. The Veteran has been diagnosed with restless leg syndrome in both his right leg and his left leg. He asserts the restless leg syndrome was caused or aggravated by his service connected right and left knee disabilities. He has had total knee replacements in each knee. A February 2017 VA examiner concluded restless leg syndrome did not result from knee replacements because medical literature indicates the condition develops due to low brain iron and dopamine activity. The Veteran, however, has submitted a medical article which notes restless leg syndrome can occur as a residual of total knee replacement surgery. Furthermore, the Veteran is also service connected for a lumbar spine disability and a right hip disability. The VA examiner did not address whether these disabilities played a role in causing or aggravating restless leg syndrome in the Veteran's left and right lower extremities. 38 C.F.R. § 3.310. Accordingly, the Board has determined that the Veteran should receive a new VA examination to determine whether the Veteran has restless leg syndrome in each leg due to service- connected disabilities. Before this VA examination or any other examination directed in this remand, further record development is required. The Veteran has submitted at least partial medical records from non-VA medical providers. Crucially, it appears the Veteran has continued to receive medical treatment from Department of Defense medical providers since he retired from service (a/k/a Tricare). There are also medical records from private civilian clinicians. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Therefore, upon remand, the Veteran should be provided an opportunity to provide complete copies of these medical records. Ongoing medical treatment records should also be obtained. 3. Entitlement to service connection for a deviated septum to include as caused or aggravated by sinusitis and/or allergic rhinitis is remanded. 4. Entitlement to a compensable rating for sinusitis is remanded. 5. Entitlement to a compensable rating for allergic rhinitis is remanded. 6. Whether the Veteran is entitled to temporary total disability for a December 19, 2007 surgical procedure is remanded. The Board will discuss these claims together as they involve related disabilities. The Veteran is currently service connected for sinusitis and allergic rhinitis. In December 2017, the Veteran underwent surgery to correct a deviated septum with additional procedures including a bilateral partial inferior turbinectomy, repair of a vestibular stenosis, and dilation of the bilateral frontal, maxillary, and sphenoid sinuses. In a December 2018 VA examination, the Veteran reported he now feels better. At his hearing however, he testified that his sinus symptoms such as nasal drainage has returned. This suggests that his sinus and allergic rhinitis disabilities have worsened. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board has determined that he should receive a new VA examination to determine the current severity of these two disabilities/ Furthermore, VA has a "well-established" duty to maximize a claimant's benefits. Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010). This includes whether the Veteran's deviated septum is related to service or caused or aggravated by the sinusitis and rhinitis disability. Morgan v. Wilkie, 31 Vet. App. 162, 164-68 (2019). Even though the Veteran has not requested service connection for a deviated septum, the Board will assume jurisdiction for a claim of service connection for a deviated septum. See id. at 168; Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) ("VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.") The claim is therefore also remanded for a VA examination to determine if the Veteran's deviated septum is related to service or secondarily connected as caused or aggravated by sinusitis and/or allergic rhinitis. McLendon v. Nicholson, 20 Vet. App. 79 (2006). On a related matter, a total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence. 38 C.F.R. § 4.30. The Veteran may be entitled to a temporary total disability award for convalescence starting December 19, 2007, if the deviated septum is service connected. Even if it is not, the Board has determined that the VA examiner should explain if the Veteran's December 2017 procedures required at least one month of convalescence insofar as it involved his sinusitis and allergic rhinitis disabilities. 7. Entitlement to a rating in excess of 10 percent for a right hip disability is remanded. The Veteran last received a VA examination in December 2018. At that time, he reported his hip disability was doing better. The Veteran, however, states his hip disability affected his sleep and he must first sit and then lean on his nightstand to stand. He could only sit for 40-45 minutes or drive an hour to hour and a half before he needed to stretch and then he walks about 5-10 minutes before he walks without a limp. This suggests that his disability has worsened. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board has determined that he should receive a new VA examination to determine the current severity of his hip disability During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). To the extent applicable, the VA should discuss the disability severity under both the new and old criteria from February 7, 2021 to the present. 38 U.S.C. § 5110. 8. Entitlement to service connection for sleep apnea As noted above, the Board determined that the Veteran's July 2016 notice of disagreement constitutes a timely notice of disagreement to the rating decision denying service connection for sleep apnea. As the RO has not had the opportunity to issue a statement of the case addressing the claim, the Board is required to remand the claim. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims, including records from Tricare/Department of Defense, Dr. F. Douglis/EarNoseThroatAllergySnoring Center, and Walnut Grove Family Practice. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA ¬¬¬hip examination to determine the current symptoms, level of severity, and functional impairment associated with his hip. The claims file should be reviewed by the examiner. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If it is not possible to specifically estimate hip range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions hip flexion is limited to 30 degrees or less. If motion would be greater than this, that should be stated. If this cannot be accomplished without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current restless leg syndrome of the left leg and the right leg had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current restless leg syndrome is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected disabilities, to include as a result of knee disabilities, lumbar spine disability, and/or right hip disability. In offering the opinion, the examiner is asked to consider and discuss the medical article submitted by the Veteran that restless leg syndrome can occur as a residual of total knee replacement surgery as the surgery may cause an injury to lower extremity nerves. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, schedule the Veteran for a VA nasal examination to determine the current symptoms, level of severity, and functional impairment associated with his allergic rhinitis and sinusitis. The claims file should be reviewed by the examiner. The examiner should specifically comment on whether it is at least as likely as not the Veteran's deviated septum had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether the deviated septum is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected sinusitis and rhinitis. The examiner is also asked to provide opinions as to whether the Veteran's December 2017 surgery constituted treatment for his deviated septum, sinusitis, or allergic rhinitis. There should be separate opinions for each one of these disabilities and the surgery. Finally, the VA examiner is asked whether convalescence one month or greater is required. 5. The Veteran and his attorney should be furnished with a statement of the case on the issue of service connection for sleep apnea and be given the opportunity to respond. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.