Citation Nr: 21072234 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-15 096 DATE: December 2, 2021 ORDER An effective date of February 28, 2011, for the grant of service connection for post-traumatic stress disorder (PTSD), is granted. New and material evidence has been presented, and the claim for service connection for degenerative joint disease of the cervical spine (neck disability) is reopened. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. An earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. Service connection for a neck disability is remanded. FINDINGS OF FACT 1. The Veteran filed his original claim for service connection for PTSD on February 28, 2011. 2. The June 1996, October 1999, and March 2004 rating decisions became final. The Veteran submitted a timely notice of disagreement but did not perfect the appeal of the March 2004 rating decision. Evidence received since the last final denial includes VA examinations, VA and private treatment records, and lay statements, which raise a reasonable possibility of substantiating the claim for service connection for a neck disability. CONCLUSIONS OF LAW 1. The criteria for an effective date of February 28, 2011, for the grant of service connection for post-traumatic stress disorder (PTSD), have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for new and material evidence to reopen a claim for service connection for degenerative joint disease of the cervical spine have been met. 38 U.S.C. §§ 5108, 7104 (b), 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1988 to March 1996. The issues pertaining to effective dates, for the grant of service connection for PTSD and for the grant of a TDIU, are on appeal from an April 2015 rating decision. In the Veteran's May 2018 Form 9 Appeal to the Board pertaining to earlier effective dates for the grant of service connection for PTSD and for the grant of a TDIU, the Veteran requested a Board hearing at a local VA office. In December 2020, the Veteran's representative submitted a request to withdraw the Veteran's previous request for a hearing, as the Veteran had reported that he no longer wished to testify at a Board hearing and preferred that a decision be rendered based upon the evidence of record. The request for a Board hearing is withdrawn. The issues pertaining to both new and material evidence and service connection regarding a neck disability, specifically degenerative joint disease of the cervical spine, are on appeal from a May 2015 rating decision. The issue pertaining to service connection for OSA is on appeal from a March 2017 rating decision. In an August 2019 Board decision, the Veteran was denied service connection for OSA. The Veteran appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC), and in April 2021, the Court issued a Memorandum Decision vacating the August 2019 Board decision and remanding the issue for further development. Thus, regarding the issue of service connection for OSA, this decision is being written in accordance with the findings from the Court's April 2021 Memorandum Decision. 1. Effective Date Service Connection PTSD The Veteran asserts that an effective date prior to September 4, 2013 for the grant of service connection for PTSD is warranted. In the June 2021 Appellate Brief, the Veteran's representative argues that while the Veteran was not formally diagnosed with PTSD until September 4, 2013, his symptoms had manifested prior to the filing of his claim in 2011. In general, VA regulations provide that the effective date for the grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. In particular, for a direct service connection claim, the effective date is the day after separation from service or the date entitlement arose, if the claim is received within one year of separation from service, otherwise the general rule applies. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran was granted service connection for PTSD with an effective date of September 4, 2013. A review of the Veteran's file reflects that the Veteran initially filed his claim for service connection for PTSD on February 28, 2011. The Veteran's treatment records show that he was first diagnosed with PTSD on September 4, 2013. However, VA treatment records from December 16, 2010 note that a PTSD diagnosis was suggested and provided diagnoses for depression disorder NOS and anxiety disorder NOS. In addition, in an addendum medical opinion from May 2012, pertaining to the March 2012 VA PTSD examination, the examiner opined that it was at least as likely as not that the Veteran's anxiety and depressive disorder are related to his claimed stressors. While the Veteran's PTSD diagnosis was not rendered until September 4, 2013, his record suggests that his symptoms were present prior to the filing of his claim on February 28, 2011. As entitlement to the grant of service connection arose prior to the Veteran's filing of the claim for service connection for PTSD, the later of the two, the date of the claim, is the effective date. Therefore, February 28, 2011 is the proper effective date. Accordingly, an effective date of February 28, 2011 for the grant of service connection for PTSD is granted. 2. New and Material Evidence Neck Disability Generally, a final and unappealed decision issued by the Agency of Original Jurisdiction or a decision from the Board may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception exists if new and material evidence is presented or secured with respect to a claim which has been disallowed, then VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. "New evidence" means existing evidence not previously submitted to agency decision-makers. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran was denied service connection for neck pain in a June 1996 rating decision. The Veteran did not appeal the June 1996 rating decision, nor did he submit any new and material evidence within a year of the decision. See 38 C.F.R. § 3.156(b). As such, the June 1996 rating decision became final. In May 1999, the Veteran filed a claim to reopen the previously denied claim for service connection for neck pain. In an October 1999 rating decision, the Veteran was denied service connection for a neck condition, because the evidence submitted since the June 1996 rating decision was deemed to be duplicative and not new and material evidence. Specifically, it was noted that the Veteran was not diagnosed with a chronic disability, and there was no medical evidence linking such a disability to service. The Veteran did not appeal the October 1999 rating decision, nor did he submit any new and material evidence within a year of the decision. See 38 C.F.R. § 3.156(b). As such, the October 1999 rating decision became final. In March 2003, the Veteran filed a claim for degenerative back disease. In a March 2004 rating decision, the Veteran was granted service connection for chronic strain of the left trapezius muscle effective March 14, 2003. However, the Veteran was denied service connection for degenerative joint disease of the cervical spine because the evidence did not show that the condition was incurred in or aggravated by military service. The Veteran submitted a timely notice of disagreement. However, he did not perfect the appeal of the March 2005 statement of the case. Evidence received since the last final denial includes, but is not limited to, VA and private treatment records, VA examinations, and lay statements. The evidence was not of record at the time of the last final denial, and it relates to unestablished facts necessary to establish the claim, in particular, the evidence reflects a diagnosis for degenerative joint disease of the cervical spine and statements regarding the etiology of the disability. The Board finds the evidence to be both new and material, and therefore the claim for service connection for a neck disability, specifically degenerative joint disease of the cervical spine, is reopened. REASONS FOR REMAND 1. Service Connection OSA In the April 2021 Memorandum Decision, the Court vacated the August 2019 Board decision denying service connection for OSA and remanded the issue for further development. The Court noted the Veteran to have served in Southwest Asia, and in 2016 to have reported symptoms of snore arousals, awakening gasping for breath, and excessive daytime sleepiness. The court identified these symptoms as being among those recognized as possible manifestations of a medically unexplained chronic multisymptom illness (MUCMI) under 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b). The Court explained that while the Veteran's treatment records indicate a conclusive pathophysiology for his sleep apnea, there is no evidence in the record demonstrating that the etiology of his condition is partly understood, such that it would not be considered a MUCMI. As there is no evidence in the Veteran's record showing that the Veteran's symptoms are not manifestations of a MUCMI, a remand is warranted to provide the Veteran with a VA examination to determine whether the Veteran's symptoms are part of his diagnosed sleep apnea illness or whether they should be considered to be a MUCMI. 2. Service Connection Neck Disability In the Appellate Brief submitted in June 2021, the Veteran's representative contends that the Veteran's neck disability, specifically his degenerative joint disease of the cervical spine, resulted from the Veteran's military service. It was noted that the Veteran did not have any neck problems before his entrance into the military, and that after his discharge from service he did not have any accidents or injuries to his neck. The Veteran explained that his head and neck were always being jarred and rattled around while riding in tanks during his military service. The Veteran's DD 214 provides the Veteran's MOS as armor crewman, and his military personnel records reflect duties as both tank gunner and armor crewman/tank driver. While the Veteran has undergone VA examinations pertaining to his neck disability in January 2004 and May 2015, which contain medical opinions pertaining to etiology, neither of these opinions directly addressed the Veteran's contention that his neck disability was caused by continual jarring to his head and neck while performing his duties inside a tank. As such, a remand is warranted to obtain a VA medical opinion addressing the Veteran's aforementioned contention. 3. Earlier Effective Date TDIU The Veteran was granted a TDIU effective September 4, 2013, which is the date the Veteran first met the schedular criteria for a TDIU. The Veteran's record reflects that he claimed entitlement to a TDIU due to his PTSD. The Veteran currently does not meet the schedular criteria for a TDIU prior to September 4, 2013. However, the Veteran has been granted in this decision an effective date of February 28, 2011 for the grant of service connection for PTSD. Thus, the issue of an earlier effective date for the grant of a TDIU is intertwined with the evaluation of the Veteran's service-connected PTSD and shall be remanded for adjudication following the evaluation of the Veteran's PTSD for the time period that coincides with the earlier effective date for the grant of service connection for PTSD effective February 28, 2011. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his OSA. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has experienced a MUCMI at any time during or since his active service that is manifested by symptoms such as snore arousals, awakening gasping for breath, and excessive daytime sleepiness? Why or why not? The examiner should review the April 2021 CAVC Memorandum Decision to understand the concern of the Court, as the Court identified the above symptoms, and then determine whether the Veteran's symptoms are a part of a diagnosed illness with a clear and specific etiology such as OSA, or whether the symptoms should be considered as part of a MUCMI. A rationale should be provided for any determinations. (b.) If the answer to question (a) is less likely than not (less than 50 percent probability) then, is it at least as likely as not (50 percent or greater probability) that the Veteran's OSA began in or was otherwise caused by his active military service? Why or why not? 2. Obtain a VA medical opinion to determine the etiology of the Veteran's neck disability, specifically his degenerative joint disease of the cervical spine. If a VA examination is needed to answer the Board's questions, then schedule the Veteran for an examination. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disability(ies), to include degenerative joint disease of the cervical spine, began in or was otherwise caused by his active military service? Why or why not? The examiner should address the Veteran's contention that his neck disability is due to his head and neck being jarred and rattled around while riding in tanks during his service, which can be found in the June 2021 Appellate Brief. 3. Due to the grant of an earlier effective date of February 28, 2011 for the grant of service connection for PTSD, following the evaluation of the Veteran's service-connected PTSD, then re-adjudicate the issue of an earlier effective date for the grant of a TDIU. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.