Citation Nr: 21026760 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-05 622A DATE: May 3, 2021 ORDER An effective date prior to May 30, 2014, for service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for sleep apnea. Service connection for glaucoma. Service connection for a sinus condition. Service connection for a breathing condition Service connection for headaches. Service connection for hypertension. FINDING OF FACT In January 2015, the RO granted service connection for PTSD; the RO assigned an effective date for service connection of May 30, 2014, the earliest date he indicated an intent to seek service connection for this condition. CONCLUSION OF LAW The criteria for an effective date prior to May 30, 2014, for service connection for PTSD have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2015, the RO denied the service connection issues on appeal, to include determining that new and material evidence had not been submitted to reopen a claim for service connection for a sleep disorder. In December 2015, the Veteran filed a timely notice of disagreement as to all of the issues on appeal, under the Legacy appeal system. He later perfected his appeal. In February 2019, the Board determined that new and material evidence had not been presented to reopen claims for service connection for sleep problems, denied claims for service connection for glaucoma, a sinus disorder, a respiratory disorder, hypertension, and headaches, and denied a claim for an effective date prior to May 30, 2014 for service connection for PTSD. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, the Court vacated the Board's February 2019 decision and remanded the claims. New evidence added to the claims file is either not relevant to the denied claim or is redundant of evidence already of record. An effective date prior to May 30, 2014, for the award of service connection for PTSD. The Veteran asserts that he is entitled to an effective date prior to May 30, 2014, for the award of service connection for PTSD. In February 2019, the Board denied this claim. In August 2020, the Court vacated and remanded the Board's February 2019 decision. The Court stated that the Board had failed to discuss whether any of three letters from the Veteran, dated in May, July, and August of 2011, could serve as informal claims for service connection for PTSD. The Court further stated that in its decision, the Board should consider the recent case from the Federal Circuit of Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). In January 2015, the RO granted service connection for PTSD; the RO assigned an effective date for service connection of May 30, 2014, which was the date his application for service connection was received by VA. Generally, the effective date of an award of an award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Generally, a specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. See 38 C.F.R. §§ 3.160 (b), 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1 (p); 3.155. In Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "under the correct legal test, 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." A veteran's legally sufficient claim must provide information, even at a high level of generality, to identify the sickness, disease, or injury for which benefits are sought. Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020) The Board finds that there is no legal basis for assignment of an effective date prior to May 30, 2014, for the grant of service connection for PTSD. The date of receipt of the Veteran's original claim of service connection for PTSD is May 30, 2014. See Veteran's claim (VA Form 21-526EZ), received by VA on May 30, 2014 (characterized as a claim for "anxiety"). The evidence does not show that he filed a formal or informal claim for service connection for an acquired psychiatric disorder prior to May 30, 2014. Accordingly, the claim is denied. The Board has considered whether any of the letters from the Veteran discussed by the Court, dated in May, July, and August 2011, may serve as an informal claim of service connection for PTSD. The Veteran's May 2011 letter states: Please give me an update on my case. Additionally I like to add that my current shoulder injury has gotten progressively worst to the point that I am now at times not able to use it at all, therefore I would respectfully request an increase in my disability rating. Please let me know what needs to be done. (all spelling, grammar, and emphasis in original). The Veteran's July 2011 letter states: I WOULD LIKE TO ASK YOU AGAIN ONE QUESTION. PLEASE TELL ME THE TIME I SERVED IN THE MILITARY? If you as of today still keep crediting me with the wrong time served how I can get properly taken care of. I find this a serious situation that you cannot even properly credit me for time served in the military, therefore you are completely incapable of properly resolving my serious medical condition. A quick update earlier this year my right shoulder locked up on me and after the needle inside the shoulder, medication, and physical therapy I now have much less use of this shoulder and the pain is now more excessive than at any other time so therefore I like this to be checked and an increase is demanded, this is also now causing a serious situation at work where it can actually cause me to be forced to retire under a medical disability which I DO NOT WANT! My low back is also a severe issue where my doctor indicates I should not lift or carry more than 10 pounds. I want a proper rely to this letter so I can forward all of this to all my legislative people to show the incompetency of your department in terms of handling a member that has and continues to suffer and again after all these years you still don't have time served properly and of course at the beginning you stated I NEVER SERVED IN GULF WAR. (all spelling, grammar, and emphasis in original). The Veteran's August 2011 letter states: It is amazing to me that you still have not responded with the correct time I served but as usual you now send another report that really contradicts what was stated on the so called Gulf War Syndrome which was indicated to me that it was only a study to help Veterans yet now your reports clearly indicates that this study again as usual was used to go against me. All complaints are not listed only items listed contradicts the actual facts. I also find it ironic that even the medications prescribed by the VA are to be paid by me at a much higher rate than my regular co pay. Due to this study I feel that I no longer want to be treated by the VA. I have a scheduled appointment for the optician due to my eye pain and headaches but all this is a big scam with appeal after appeal and taxpayer's paying for it. So, this eye exam which clearly indicates a problem that is why I am being asked to spend an entire day to be examined. However due to these reports I will not go for this or any other VA examination. The bottom line is I served and for over a decade I have been progressively getting worst now at times I cannot bend, lift or carry amongst the all other problems were I never get good night sleep or go more than two days without stomach pain and cramps. I am more sick of your conclusions were if you can't even know the time I served what the hell do you know then! Suffice to say my kids. WILL NOT SERVE in the military if I can help it. (all spelling, grammar, and emphasis in original). None of the three letters from the Veteran, dated in May, July, and August of 2011, fulfill the criteria for an informal claim of service connection for an acquired psychiatric disorder. The Veteran's May, July, and August 2011 letters mentioned eye, headache, stomach, right shoulder, and sleep symptoms. Neither the May nor July 2011 letters expressly mentioned psychiatric symptoms. They therefore did not "identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality." Sellers. In a February 2021 brief, the Veteran's representative argued that the first two letters raised claims for increased ratings for the back and shoulder and the last letter clarified that he was also seeking service connection for a sleep impairment. A claim for secondary service connection is not part of every claim for service connection for the primary disability or for an increase in the primary disability, nor is it a claim for increased compensation. Gudinas v. McDonough, No. 19-2640, 2021 U.S. App. Vet. Claims LEXIS 659, at *33 (Vet. App. Apr. 16, 2021). Here, there is no specific language in these letters that shows an intent to file a secondary claim for an acquired psychiatric disorder, and there is nothing in the Veteran's letters of May, July or August of 2011 that can reasonably be read to indicate an intent to file a claim for a psychiatric disorder. There was also nothing submitted proximate in time to these letters, which might have led a reasonable person to believe he intended the letters to indicate an informal claim. The August 2011 letter referred to never getting a good night sleep. The Veteran has since filed a claim of service connection for a sleep disorder secondary to a psychiatric condition. His August 2011 letter, however, did not specify that he was seeking disability compensation for a sleep disorder or indicate a belief that he had a separate sleep disorder due to the shoulder disability. Rather, read in context, he was clearly stating that the shoulder pain caused symptoms involving sleep problems. Merely mentioning the sleep problems in the context of these letters did not indicate a desire to initiate a claim for a separate sleep condition. See Shea v. Wilkie, 926 F.3d 1362, 1369-70 (Fed. Cir. 2019); see also Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742, at *14 (Vet. App. Apr. 28, 2021). Upon a liberally reading, his statement certainly indicated a desire to have the sleep problems considered as a symptom of his shoulder condition, but that was a rating matter, not a service connection matter. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (explaining that "the appropriate time to consider the veteran's symptoms is when determining the amount of compensation to which the veteran is entitled."); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see, also, Ferenc v. Nicholson, 20 Vet. App. 58, 62-63 (2006) (finding that that "compensation" is a distinct legal term from both "rating" and "service connection". . . Congress has created a clear distinction between these terms."). More reasonably, the August 2011 letter was expressing dissatisfaction with the handling of his increased rating claim for his service-connected right shoulder disability. He also appears to have been castigating VA personnel for their failure to be able to verify his service in Southwest Asia, and expressing his dissatisfaction on his examinations associated with his claims that were in progress (other than an acquired psychiatric disorder), and the cost of medication. This did not indicate a desire to seek service connection for a psychiatric condition. In summary, the evidence does not show that a formal claim or an informal claim of service connection for an acquired psychiatric disorder was received prior to May 30, 2014. See 38 C.F.R. §§ 3.155, 3.157. Given the foregoing, there is no basis for the assignment of an effective date for the grant of service connection for PTSD prior to May 30, 2014, and the claim must be denied. See 38 C.F.R. § 3.400 (b)(2). REASONS FOR REMAND 1. Service connection for a sleep disorder, as secondary to PTSD This issue is remanded for a VA examination. Consistent with the Court's memorandum decision, the Board finds that the current claim of service connection for sleep apnea is a new, factually distinct claim. This was the Veteran's argument to the Court, and it is consistent with the record before the Board. Hence, new and material evidence is not needed to reopen a prior claim of service connection for a sleep disorder. See Grimes v. McDonough, No. 18-1017, 2021 U.S. App. Vet. Claims LEXIS 742, at *20-21 (Vet. App. Apr. 28, 2021). The Board cannot make a fully-informed decision on the issue of service connection for sleep apnea because no VA examiner has opined whether the condition may be related to service or a service-connected disability. A private examiner in September 2020 indicated that the Veteran had a sleep disorder secondary to his psychiatric PTSD. However, the examiner did not identify the specific diagnosis being discussed. At a high level of generality, the examiner repeatedly referred to a "sleep disorder," but more specifically referred to sleep symptoms associated with service-connected psychiatric disability, such as insomnia and nightmares. The examiner cited a study that incidentally mentioned sleep apnea, but did not indicate that the scope of her opinion included sleep apnea. As such, this opinion is too vague and imprecise as to the diagnosis. Nonetheless, it is adequate to meet the low threshold to refer for a VA examination. 2. Service connection for glaucoma. 3. Service connection for a sinus condition. 4. Service connection for a breathing condition 5. Service connection for headaches. 6. Service connection for hypertension. The Veteran asserts that he has glaucoma, a sinus condition, a breathing condition, headaches, and hypertension, due to an undiagnosed illness. See 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. In May 2014, the Veteran filed his claims for service connection. See VA Form 21-526EZ, received in May 2014. In January 2015, the RO denied the claims. The Veteran appealed, and in February 2019, the Board denied the claims. The Veteran appealed to the Court. In August 2020, the Court vacated the Board's February 2019 decision and remanded the claims. The Court noted that the Board had remanded other service connection issues based on an undiagnosed illness, and stated: [T]he Board never discussed whether remand on that same basis is appropriate for appellant's respiratory disorder, hypertension, sinus disorder, glaucoma, and headachesall of which might constitute an undiagnosed illness under section 1117. Without an explanation on why it remanded some claims under section 1117 and not others, the Board's decision frustrates judicial review. So remand is required on this issue too. The Board notes that VA treatment reports include diagnoses of asthma, rhinitis, allergic rhinosinusitis, conjunctivitis, refractive error, and glaucoma. To the extent that the Veteran argues that he has any of these conditions due to an undiagnosed illness, service connection may not be granted for symptoms of these conditions on this basis. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004). The Veteran has not yet been afforded examinations that specifically address his claims based on an undiagnosed illness. On remand, the Veteran should be afforded examinations, and etiological opinions should be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is within the Board's discretion to obtain further evidence when such development is required to render a decision on a claim. Tyrues v. Shinseki, 23 Vet. App. 166 (2009); see also Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of sleep apnea. The examiner is asked to address each of the following: (a.) Does the Veteran have a current diagnosis of sleep apnea? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) If diagnosed, is sleep apnea at least as likely as not related to an in-service injury, event, or disease? (c.) Is sleep apnea at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition? 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any glaucoma, a sinus condition, a breathing condition, headaches, or hypertension. The examiner is asked to address each of the following: (a.) The examiner must provide a diagnosis for any conditions found extent related to these claims. In doing so, the examiner must conduct all necessary testing, unless it can be explained why such testing is not medically necessary. Please provide a medical statement explaining whether the Veteran's disability pattern is: (b.) an undiagnosed illness (c.) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology (d.) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (e.) a disease with a clear and specific etiology and diagnosis i. If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (d) or (e) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (f.) If no, is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.