Citation Nr: 21011303 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-35 106A DATE: March 1, 2021 ORDER Entitlement to service connection for emphysema is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to an effective date earlier than June 13, 2012, for the grant of service connection for sleep apnea is denied. Entitlement to an initial disability rating in excess of 50 percent for sleep apnea is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 19, 2015, to include for the purpose of special monthly compensation (SMC) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence fails to show that the Veteran’s emphysema is caused by his active duty service nor related to or aggravated by a service connected disability. 2. The preponderance of the evidence fails to show that the Veteran’s COPD is caused by his active duty service nor related to or aggravated by a service connected disability. 3. Prior to June 13, 2012, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for sleep apnea. 4. The Veteran’s sleep apnea required use of a breathing assistance device machine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for emphysema have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for an effective date prior to June 13, 2012, for the grant of service connection for sleep apnea have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. § 3.102, 3.155, 3.400 (2020). 4. The criteria for an initial disability rating in excess of 50 percent for the Veteran’s sleep apnea have not met. 38 U.S.C. § §§ 1155, 5107 (2018); 38 C.F.R. § §§ 3.102, 3.310(b), 4.1 4.14, 4.97, Diagnostic Code 6847 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from August 1969 to December 1970. VA’s duty to notify was satisfied by a letter sent in July 2012. 38 U.S.C. §§ 5102, 5103, 5103A (2018); 38 C.F.R. § 3.159 (2020); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The evidence of record includes the Veteran’s VA treatment records and private medical records and the Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C. § 5103A (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In September 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive VA examinations for his service connection claims. The Veteran received new VA examinations in November 2019. For the Veteran’s emphysema and COPD disabilities, the examination was adequate because it based on a thorough examination, a description of the Veteran’s pertinent medical history, a complete review of the claims file, and appropriate diagnostic tests. The examiner also provided a rationale for the opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). There has been substantial compliance with the remand directives pertaining to these service connection claims. See Stegall v. West, 11 Vet. App. 268 (1998). However, as discussed in the Remand portion below, the Board finds the VA nexus opinions for the Veteran’s hypertension disability inadequate and therefore there has not been substantial compliance with the remand directives for that claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2020); Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The November 2019 VA examiner considered the Veteran’s service connection claims for emphysema and COPD. The examiner noted that there was no evidence in the Veteran’s service records relating to treatment or diagnosis for these conditions. The examiner stated that smoking is a main contributor to both conditions, and the Veteran had a past history of smoking. Thus, he opined that his emphysema and COPD was secondary to the Veteran’s smoking. The examiner also noted that emphysema and COPD are respiratory conditions caused by long term exposure to lung irritants. Consequently, the examiner opined that the Veteran’s conditions were not related to or aggravated by his service-connected coronary artery disease because they are separate and unrelated conditions. In considering the lay and medical evidence of record the Board finds that service connection for emphysema and COPD is not warranted. While the Board considers the Veteran’s lay opinion, the November 2019 VA opinion provided credible, competent evidence against his opinion. Because there is no universal rule as to competence on this issue, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Lay persons are competent to provide opinions on some medical issues. Id. at 435. However, providing a nexus opinion for his direct and secondary service connection claims falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Determining the etiology of the Veteran’s disability requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions is low. Conversely, the VA examiner has the necessary training to provide an opinion, so the probative value of his opinion is high. Therefore, as the preponderance of the probative evidence is against the Veteran’s claims, service connection for emphysema and COPD is denied. Earlier Effective Date Unless specifically provided otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a) (2018); 38 C.F.R. § 3.400 (2020). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2018); 38 C.F.R. § 3.400(b)(2)(i) (2020). Prior to March 24, 2015, a “claim” was either a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2014). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b) (2015). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. A review of the claims file reveals that VA received the Veteran’s claim seeking service connection for sleep apnea on June 13, 2012. Generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Veteran asserts he is entitled to an earlier effective date for the award of service connection for this disability; however, he has not asserted that he filed a claim prior to June 13, 2012. Furthermore, no communication was received from the Veteran indicating an intent to claim service connection for sleep apnea prior to June 13, 2012. The Board concedes that the Veteran’s medical records show evidence that he suffered from sleep apnea prior to June 13, 2012. Nevertheless, when considering the effective date based on date of entitlement, the effective date is the later of either the date of receipt of claim or date of entitlement. Consequently, even if entitlement for sleep apnea arose earlier, the later date would be the date of receipt of claim. Therefore, an effective date prior to June 13, 2012 for the grant of service connection for sleep apnea is denied. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for sleep apnea in June 2012. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s sleep apnea is rated under Diagnostic Code 6847. 38 C.F.R. § 4.97. Under this Diagnostic Code, a 50 percent rating is warranted when the disability requires use of breathing assistance device such as continuous airway pressure (CPAP) machine. A 100 percent rating is warranted when the disability results in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. The Veteran underwent a DBQ for his sleep apnea in December 2016. The examiner reported that the Veteran used a CPAP machine but had difficulty adjusting to the mask and was eventually prescribed a BiPAP machine. The examiner noted that that machine was a less effective option. The examiner also noted the Veteran has symptoms of persistent daytime hypersomnolence, irritability, and difficulty concentrating. The Board finds an increased rating is not warranted. The Board acknowledges the Veteran’s use of the BiPAP machine as a less effective option, as well as his additional symptoms of daytime hypersomnolence, irritability, and concentration difficulties. Nevertheless, there is no probative medical or lay evidence in the record showing that his disability results in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, as required by the 100 percent rating. Accordingly, the Board finds that the Veteran’s disability is best captured by the 50 percent rating and an increase to 100 percent is denied. REASONS FOR REMAND 1. Service connection for hypertension The Board acknowledges that the Veteran received a VA examination in November 2019 for his hypertension. The examiner provided an inadequate opinion because he only noted there was no current diagnosis at the examination. The evidence of record, however, shows that the Veteran suffered hypertension during the appeal period. Thus, as there was evidence of a current diagnosis, a nexus opinion that considered the in-service treatment for hypertension as a cause of his current issues is necessary. Accordingly, the Board finds that a remand for a new opinion is needed. 2. Entitlement to TDIU The Board acknowledges that based on the more recent rating decisions, the Veteran’s combined rating is 100 percent for the entire appeal period. However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). A TDIU satisfies the total (100 percent) rating requirement for establishing special monthly compensation (SMC) if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more. See Bradley v Peake, 22 Vet. App. 280 (2008). The Veteran’s TDIU claim was also remanded in September 2018. However, his claim was not adjudicated; instead, the AOJ found the issue was moot, as noted in the May 2020 Supplemental Statement of the Case. As discussed above though, the issue remains active and the Board finds a remand for the full adjudication of the Veteran’s TDIU claim is warranted. Specifically, the AOJ should consider the August 2020 brief from the Veteran’s former attorney. The matters are REMANDED for the following actions: 1. Return the Veteran’s claims file to the examiner who conducted the November 2019 hypertension VA examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, readjudicate the claims, including whether TDIU is warranted prior to June 19, 2015, to include SMC. It is insufficient for the AOJ to determine the issue is moot because the Veteran has a combined disability rating of 100 percent. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.