Citation Nr: 21021502 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 20-09 360 DATE: April 13, 2021 ORDER Service connection for lumbosacral spine degenerative arthritis and strain is granted. Service connection for sleep apnea is granted. Service connection for a recurrent sinus disability, to include sinusitis, is denied. An effective date prior to June 29, 2017, for the establishment of service connection for major depressive disorder with an anxiety disorder is denied. An effective date prior to June 29, 2017, for the establishment of service connection for cellulitis is denied. An initial 100 percent schedular rating for major depressive disorder with anxiety disorder is granted, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a right lower extremity neurological disability, to include meralgia paresthesia, is remanded. Entitlement to service connection for a left lower extremity neurological disability, to include meralgia paresthesia, is remanded. Entitlement to an initial rating in excess of 30 percent for cellulitis is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) prior to June 10, 2020, is remanded. Entitlement to basic eligibility for Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 prior to June 10, 2020, is remanded. FINDINGS OF FACT 1. Service connection has been established for right knee chondromalacia patella, left leg varicose veins, cellulitis, major depressive disorder with anxiety disorder, left leg stasis dermatitis, bilateral sensorineural hearing loss, and tinnitus. 2. Lumbosacral spine degenerative arthritis and strain have been shown to be at least as likely as not etiologically related to the service connected right knee chondromalacia patella. 3. Sleep apnea has been shown to be at least as likely as not etiologically related to the service connected right knee chondromalacia patella, left leg varicose veins, major depressive disorder with an anxiety disorder and the medications prescribed for those disabilities. 4. A recurrent sinus disability was not shown during active service or at any time thereafter. 5. A recurrent depressive disorder was initially shown in March 2011. 6. Cellulitis was initially shown in 2013. 7. The Veteran submitted a June 2017 Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ, for a psychiatric disability and cellulitis. The claim was received by VA on June 29, 2017. 8. No formal claim or other communication requesting service connection for a psychiatric disability or cellulitis was received by VA prior to June 29, 2017. 9. The service connected major depressive disorder and anxiety disorder have been shown to be productive of weekly suicidal thoughts; panic attacks that occur weekly or less often; “difficulty keeping up with basic hygiene tasks;” intermittent inability to perform activities of daily living; a depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and an inability to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbosacral spine degenerative arthritis and strain have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for service connection for a recurrent sinus disability, to include sinusitis, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a). 4. The criteria for an effective date prior to June 29, 2017, for service connection for major depressive disorder with anxiety disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an effective date prior to June 29, 2017, for service connection for cellulitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for an initial 100 percent schedular rating for major depressive disorder with anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Codes 9400, 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1987 to May 1990 and from January 1991 to February 1991. He had additional duty with the Army Reserve. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions promulgated by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and diabetes mellitus becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for Veterans Claims (Court) held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of a nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability, any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase, regardless of its permanence." Service connection has been established for right knee chondromalacia patella, left leg varicose veins, cellulitis, major depressive disorder with anxiety disorder, left leg stasis dermatitis, bilateral sensorineural hearing loss, and tinnitus. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Lumbosacral Spine Disability The Veteran asserts that service connection for a lumbosacral spine disability is warranted as the claimed disability was incurred secondary to the service connected right knee and varicose vein disabilities. The report of an October 2017 VA spine examination states that the Veteran was diagnosed with lumbosacral strain and degenerative arthritis. The examiner commented that the Veteran was service connected for right knee chondromalacia and “chondromalacia of the right knee, as well as any problem with any major weight-bearing joints, may contribute to the development of chronic low back pain or degenerative joint disease of the lumbosacral spine, as there is a shift in the weight-bearing equilibrium, putting more stress on the other weight-bearing joints.” The report of a March 2018 VA spine examination states that the Veteran was diagnosed with lumbar spine degenerative disc disease and facet joint degenerative changes. In summary, the Veteran has been diagnosed with lumbosacral spine degenerative arthritis and strain. A VA physician has concluded that the service-connected right knee chondromalacia “may contribute to the development of chronic low back pain or degenerative joint disease of the lumbosacral spine.” The Board also reiterates the law mandates resolving all reasonably doubt in the Veteran’s favor. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for lumbosacral spine degenerative arthritis and strain, due to right knee chondromalacia patella, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Sleep Apnea A June 2015 VA sleep study diagnosed the Veteran with obstructive sleep apnea. A January 2020 evaluation from S. Etherton, D.O., states that the Veteran was diagnosed with obstructive sleep apnea. The physician noted that: the Veteran “takes methocarbamol to treat his pain;” “methocarbamol is a muscle relaxant;” and “muscle relaxers relax the muscles in a patient’s throat and are known to aggravate sleep apnea.” Dr. Etherton concluded that “it is my opinion that it is as likely as not the Veteran’s pain from his service connected right knee and left leg varicose veins, the medications used to treat his pain, his major depressive disorder and moderate anxiety disorder, the medications used to treat his mental health symptoms, as well as his obesity have all caused and continue to permanently aggravate his moderately severe obstructive sleep apnea.” The Veteran has been diagnosed with sleep apnea. Dr. Etherton concluded that the diagnosed sleep apnea was “caused and permanently aggravated” by the service connected right knee, left leg varicose veins, and psychiatric disabilities and the medications prescribed to treat the service connected disabilities. In the absence of any competent evidence to the contrary and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for sleep apnea secondary to the service connected right knee, left leg varicose veins, and psychiatric disabilities and the medications prescribed for those disabilities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Sinus Disability The Veteran asserts that service connection for sinusitis is warranted. He advances no specific contention in support of his claim for service connection. The service medical records do not refer to sinusitis or other sinus abnormalities. A March 2005 VA treatment record states that the Veteran reported that “he is treated about once or twice a year for sinus infection.” No sinus disability was diagnosed. The remainder of the clinical record does not pertain to a recurrent sinus disability. In short, the service and post service clinical documentation does not reflect that the Veteran has been diagnosed with a recurrent sinus disability at any time during the pendency of this case. See McClain v. Nicholson, 21Vet. App.319, 321 (2007). The Veteran has advanced no contentions to support the claim of service connection for a recurrent sinus disability to include sinusitis. In the absence of evidence of current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the Board concludes that service connection for a recurrent sinus disability, to include sinusitis, may not be established. Earlier Effective Dates for the Awards of Service Connection for a Psychiatric Disability and Cellulitis Generally, the effective date for an award of service connection is the day after service separation or the date entitlement arose, whichever is later, if the claim is received within one year of the date of separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran asserts that effective dates prior to June 29, 2017, for service connection for both major depressive disorder with an anxiety disorder and cellulitis are warranted. He has made no specific argument in support of the claims. The Veteran separated from his final period of active service in February 1991. The Veteran submitted a June 2017 Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ, for psychiatric disability and cellulitis. The claim was received by VA on June 29, 2017. The evidence does not show any communication from the Veteran or any other source prior to June 29, 2017, that could be construed as a claim for benefits for either a psychiatric disability or cellulitis. VA clinical documentation dated in March 2011 states that the Veteran was diagnosed with depression. The report of a March 2018 VA skin examination states that the Veteran was initially diagnosed with cellulitis in 2013. In April 2018, the Agency of Original Jurisdiction established service connection for major depressive disorder with an anxiety disorder and cellulitis, effective June 29, 2017, the date of receipt of the Veteran’s Application for Disability Compensation and Related Compensation Benefits, VA Form 21 526EZ. Because the service connected disabilities originated over 20 years after service and as the Veteran’s claims for service connection were received many years thereafter, the Board concludes that the appropriate effective dates for the award of service connection for both major depressive disorder with anxiety disorder and cellulitis is June 29, 2019, the date of receipt of the claim for service connection. The Board finds that the preponderance of the evidence is against the assignment of any earlier effective date. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Increased Rating for Major Depressive Disorder with Anxiety Disorder Disability ratings are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 50 percent rating is warranted for major depressive disorder and/or an anxiety disorder which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9400, 9434. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A February 2020 psychiatric evaluation from K. Byrd, Psy.D., conveys that the Veteran reported experiencing “difficulty keeping up with basic hygiene tasks, and often showers just once per week and does not shave;” “panic attacks 1-2 times per month;” and “thoughts about suicide now, approximately once per week.” Dr. Byrd concluded that: the Veteran “has been service connected for major depressive disorder and anxiety disorder;” “he continues to suffer from symptoms of these conditions, which impact his cognitive, emotional, and social functioning;” and the Veteran’s “major depressive disorder and anxiety disorder more likely than not prevent him from maintaining substantially gainful employment since the date of his claim, 6/29/17;” and “these conditions impact his employability due to impairments in frustration, tolerance, concentration and memory, sleep, and interpersonal relations.” The report of a July 2020 psychiatric examination conducted for VA states that the Veteran exhibited a depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner determined that the service connected major depressive disorder and anxiety disorder were productive of “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” She clarified that: “Veteran’s anxiety and depression affect his functioning in the work environment due to his tendency to isolate and avoid people most of the time;” “this has affected his ability to work with peers and be in an environment where he has to deal with the public;” “he has significant fatigue and difficulty concentrating due to his symptoms including disrupted sleep - this impacts his ability to be productive and efficient at work;” Veteran has limited coping skills and significant difficulty tolerating stress which affect his functioning at work as he cannot easily adapt to stressful situations;” and the “Veteran tends to give up easily on things and either quit or leave projects incomplete.” The service connected psychiatric disabilities have been shown to be productive of weekly suicidal thoughts; panic attacks that occur weekly or less often; “difficulty keeping up with basic hygiene tasks;” intermittent inability to perform activities of daily living; a depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and an inability to obtain and retain substantially gainful employment. Dr. Byrd conclude that the Veteran’s psychiatric symptoms have been consistently disabling since he submitted his claim for service connection for a psychiatric disability. Such symptoms most closely approximate the criteria for a 100 percent rating under Diagnostic Codes 9400, 9434. 38 C.F.R. § 4.7. Therefore, the Board concludes that an initial 100 percent schedular rating for major depressive disorder with an anxiety disorder is warranted.   REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus The Veteran contends that service connection for diabetes mellitus is warranted as the claimed disability was incurred secondary to the service-connected left leg varicose veins and right knee chondromalacia patella. The report of a March 2018 VA diabetes mellitus examination states that the Veteran was initially diagnosed with Type II diabetes mellitus in 2017. The examiner concluded that “the claimed condition, diabetes mellitus II is less likely than not due to or the result of the Veteran’s service connection condition, varicose veins.” She commented that “diabetes Mellitus II is a metabolic condition and varicose veins are enlarged veins that become twisted due to valve damage and not related to diabetes mellitus II, no nexus.” The Board finds, however, that the March 2018 VA examiner did not adequately address the issue of secondary aggravation, particularly when taking into account the Court’s holding in Ward, supra. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a remand is required to accord the Veteran a new examination and opinion to address his claim of secondary service connection. 2. Entitlement to service connection for a right lower extremity neurological disability to include meralgia paresthesia and a left lower extremity neurological disability, to include meralgia paresthesia is remanded. In light of the award of service connection for a lumbosacral spine disability above and given the nature of the claimed disabilities, the Board finds that the issues of service connection for a right lower extremity neurological disability to include meralgia paresthesia and a left lower extremity neurological disability, to include meralgia paresthesia should be readjudicated. 3. Entitlement to an initial rating in excess of 30 percent for cellulitis is remanded. The report of a July 2020 skin examination conducted for VA states that the Veteran was diagnosed with cellulitis. The examiner reported that the Veteran had not been “treated with medication in the past 12 months for any skin condition.” An August 2020 VA treatment record states that the Veteran was diagnosed with cellulitis. He was prescribed “doxycycline 100 mg by mouth twice a day for 10 days.” Because of the apparent increase in severity of the service-connected cellulitis, the Board finds that further VA skin evaluation is needed. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997 Clinical documentation dated after October 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 4. Entitlement to both TDIU and basic eligibility for Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 prior to June 10, 2020, is remanded. The issues of entitlement to TDIU prior to June 10, 2020, and basic eligibility for Dependents’ Educational Assistance under 38 U.S.C. Chapter 35 prior to June 10, 2020, are benefits intertwined with the issue of an increased rating for the service connected cellulitis being remanded and must also be remanded. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any lower extremity neurological disability and the service connected cellulitis. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA clinical documentation not already of record, including treatment records dated after October 2020. 3. Schedule the Veteran for a VA examination to ascertain the etiology of his diabetes mellitus. After examining the Veteran, reviewing the record, and undertaking any testing deemed necessary, the examiner should express an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's diabetes mellitus (a) was caused by or (b) has been aggravated (worsened beyond natural progression) by his service-connected service connected left leg varicose veins and/or right knee chondromalacia patella. A complete medical rationale for all opinions expressed must be provided. The examiner’s opinion regarding secondary aggravation should be consistent with the Court’s holding in Ward v. Wilkie, 31 Vet. App. 233 (2019). 4. Schedule the Veteran for a VA skin examination to ascertain the current severity of the service-connected cellulitis. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify the percentage of both the entire body and exposed areas of the body affected by the service connected cellulitis. (b) Indicate whether the service connected cellulitis is productive of ulceration, extensive exfoliation or crusting, or systemic or nervous manifestations; is exceptionally repugnant; or requires constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. (c) Discuss the medication treatment used and whether that medication constitutes systemic therapy such as corticosteroids or other immunosuppressive drugs. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.