Citation Nr: 21030688 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-46 916 DATE: May 19, 2021 ORDER The appeal seeking entitlement to service connection for bilateral hearing loss is dismissed. The appeal seeking entitlement to service connection for a left knee disability is dismissed. The appeal seeking entitlement to service connection for hypertension is dismissed. The appeal seeking entitlement to service connection for tinnitus is dismissed. The appeal seeking entitlement to service connection for diabetes mellitus is dismissed. The appeal seeking entitlement to service connection for a left hip disability is dismissed. The appeal seeking entitlement to service connection for a left quadricep disability is dismissed. The appeal seeking entitlement to service connection for a heart disability is dismissed. The appeal seeking entitlement to service connection for colon cancer is dismissed. The appeal seeking entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for headaches is remanded. FINDING OF FACT No specific errors of fact or law have been alleged by the Veteran or his representative as to the denials of entitlement to service connection for bilateral hearing loss, a left knee disability, hypertension, tinnitus, diabetes mellitus, a left hip disability, a left quadricep disability, a heart disability, colon cancer; and entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal seeking entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 2. The criteria for dismissal of the appeal seeking entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 3. The criteria for dismissal of the appeal seeking entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 4. The criteria for dismissal of the appeal seeking entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 5. The criteria for dismissal of the appeal seeking entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 6. The criteria for dismissal of the appeal seeking entitlement to service connection for a left hip disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 7. The criteria for dismissal of the appeal seeking entitlement to service connection for a left quadricep disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 8. The criteria for dismissal of the appeal seeking entitlement to service connection for a heart disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 9. The criteria for dismissal of the appeal seeking entitlement to service connection for colon cancer have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. 10. The criteria for dismissal of the appeal seeking entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.204. REASONS AND BASES FOR FINDING AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1983 to July 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision. Dismissal For claims in VA's legacy appeals system (that is, those appeals not being processed in the appellate system creased by the passage and implementation of the Appeals Modernization and Improvement Act), the Board's authority to review an adverse RO decision is initiated by a claimant's submission of a notice of disagreement and completed by a substantive appeal after a statement of the case has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.104. A substantive appeal consists of a properly completed VA Form 9, "Appeal to the Board of Veterans' Appeals," and should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction (AOJ) in reaching the determination or determinations being appealed. 38 C.F.R. § 19.22. It is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each issue before adjudicating the merits and that, once apparent, a potential jurisdictional defect may be raised by the court, tribunal or any party, sua sponte, at any stage in the proceedings. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Within the VA regulatory system, the Board has the authority to decide all questions pertaining to its jurisdictional authority to review a particular case. 38 C.F.R. § 20.104(c). When the Board raises a question as to a jurisdictional defect sua sponte, all parties and their representative or representatives must be provided notice as to the potential jurisdictional defect and allowed a period of 60 days following the date of mailing of the notice to present argument or additional evidence concerning the jurisdictional issue. Id. The notice letter must also afford the opportunity to request a hearing to present oral argument on the jurisdictional defect. Id. The Board may dismiss any case over which it determines it does not have jurisdiction. Id. Here, the Veteran's September 2017 VA Form 9, in pertinent part, appealed the issues of entitlement to service connection for bilateral hearing loss, a left knee disability, hypertension, tinnitus, diabetes mellitus, a left hip disability, a left quadricep disability, a heart disability, colon cancer; and entitlement to a TDIU. However, his substantive appeal served only to identify these matters and alleged no specific errors of fact or law in support thereof. In October 2019, the Veteran's Law Judge (VLJ), to whom the case was then assigned, provided notice of jurisdictional deficiencies by informing the Veteran and his representative that the substantive appeal was defective as to these matters "because it failed to allege specific error of fact or law in the determination being appealed." The Veteran and his representative were further informed that any failure to cure this defect could result in the dismissal of the appeals, and afforded 60 days to take corrective action. Despite proper notice, no response was received concerning this jurisdictional inquiry. This failure to respond to VA's request for argument or evidence pertaining to these appeals is a direct violation of the representative's professional responsibilities. See, e.g., 38 U.S.C. § 7105(d)(5); Barela v. Peake, 22 Vet. App. 155, 159 (2008) (noting that an attorney has the ethical duty to educate himself about the relevant law, analyze the factual and legal elements of a case, adequately prepare, and zealously represent his client's interest); Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005); Model Rules of Professional Conduct R. 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."). Even affording the Veteran a liberal reading of the record, it is not found that specific allegations of error of fact or law have been offered with respect to the following appeals: entitlement to entitlement to service connection for bilateral hearing loss, a left knee disability, hypertension, tinnitus, diabetes mellitus, a left hip disability, a left quadricep disability, a heart disability, colon cancer; and entitlement to a TDIU. His representative's implicit and generic assertion that such errors exist is wholly inadequate to satisfy the "specific error" element of § 7105A(d)(5). See Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) ("canons of construction require us to give effect to the clear language of statute and avoid rendering any portions meaningless or superfluous"). In light of such a failure and in exercising the Board's Congressionally imposed authority, these matters are hereby dismissed. In taking such action, the Board observes that the Veteran's representative was informed of his procedural obligations in perfecting an appeal and afforded an opportunity to cure his error. This is in addition to his own ethical duty to have known and met the requirements in presenting these claims in the first place. Lastly, the Board notes that in a most recent April 2020 correspondence, the Veteran stated, "my appeals are for headaches, depression, and sleep [apnea] and still use a [CPAP] machine every day for years." See April 2020 VA Form 21-4138. Ultimately, based on the foregoing, the Board interprets the April 2020 correspondence as an indication that the Veteran and his representative are aware that the September 2017 VA Form 9 has failed to allege specific errors of fact or law in the prior AOJ decisions concerning the issues on appeal and are not disputing the Board's findings. As such, the Board finds that the September 2017 substantive appeal is inadequate. Specifically, the Board finds that it lacks the jurisdiction to decide claims that have not been properly appealed through a valid Form 9 substantive appeal following a statement of the case. Therefore, those appeals as identified on the title page are hereby dismissed. The Board has the authority to determine whether it has appropriate jurisdiction over a claim, and it may dismiss any case over which it determines it does not have jurisdiction. See 38 C.F.R. § 20.104(c). REASONS FOR REMAND The Veteran asserts he has an acquired psychiatric disorder related to service. In October 2019, the Veteran submitted a November 2017 private mental disorders disability benefits questionnaire (DBQ) and a psychiatric assessment completed by H. H.-G., PhD, HSPP. She opined, "It is the belief of this examiner, based on interview and the [claims file] that [the Veteran] suffers from unspecified depressive disorder more likely than not began in military service, continues uninterrupted to the present and is aggravated by his headaches and OSA." Included within her rationale, she stated, "The Veteran reported noticing increase in stress as military training expectations increased and responsibilities became more important. The Veteran focused on not hurting others, this personal responsibility weighed heavily manifesting as depression, starting in active military service." She also referred to the Veteran's spouse's lay statement that "his depressive disorder symptoms are a result of his military service and have exacerbated since military separation." She stated that "during military service, the Veteran became depressed and returned home from service a different person; irritable, easily frustrated/angered, yelled at people he did not know, hit a door out of anger, trouble sleeping, socially isolated/withdrawn, [got] upset over talking about certain topics, panic attacks, trouble handling stressful situations, easily overwhelmed, memory issues, difficulty establishing and maintaining relationships, low motivation and his struggles continue to the present." The examiner additionally supported her opinion by citing to medical literature. The Veteran's representative has also submitted medical literature in support entitled, "The effect of depression on the association between military service and life satisfaction". Given the above, and that the Veteran has not been afforded a VA examination to determine the etiology of any acquired psychiatric disorder, the Board finds that the "low threshold" standard as to when an examination to secure a nexus opinion is required is met; development for such an examination is necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran asserts that he has OSA related to service. Alternatively, he asserts that he has OSA secondary to an acquired psychiatric disorder. In a November 2014 letter by the Veteran's spouse, she recalled the Veteran struggling with sleep deprivation and patterns of wakening after bouts of heavily snoring that included coughs and abrupt awakening periods including while he was in the military. In October 2019, the Veteran submitted a January 2018 private sleep apnea DBQ, completed by M. B., M.D. When asked whether the Veteran had any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his sleep apnea condition, the examiner noted, "Depressive disorder and medications used to treat his depressive disorder." This record, and other evidence in the file, to include medical literature entitled, "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort," suggest that the Veteran's OSA symptoms may be secondary to an acquired psychiatric disorder, and therefore, the OSA issue is inextricably intertwined with the issue of service connection for an acquired psychiatric disorder. Given the above, and that the Veteran has not been afforded a VA examination to determine the etiology of his OSA, the Board finds that the "low threshold" standard as to when an examination to secure a nexus opinion is required is met; development for such an examination is necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's primary theory of entitlement is that he has headaches secondary to an acquired psychiatric disorder. In October 2019, the Veteran submitted a January 2018 private headaches DBQ, completed by M. B., M.D. Following review of the claims file, interview with the Veteran, and cited medical literature ("Depression in Headaches: Chronification"), the examiner opined the Veteran's headaches are more likely than not caused and permanently aggravated by his depressive disorder. This record suggests that the Veteran's headaches may be secondary to an acquired psychiatric disorder, and therefore, the headache issue is inextricably intertwined with the issue of service connection for an acquired psychiatric disorder. If service connection for an acquired psychiatric disorder is granted, an examination to confirm the nature and severity of the headaches and to obtain a medical opinion addressing whether such may be secondary to the service-connected acquired psychiatric disorder, would be necessary. The matters are REMANDED for the following action: 1. Arrange for the Veteran to be examined by an appropriate psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability(ies). Upon examination and interview of the Veteran and review of his medical history (to include any additional records received from the above development), the examiner should: (a) Identify (by diagnosis) each psychiatric disability entity found (or shown by the record). (b) Identify the likely etiology for each psychiatric disability entity diagnosed (specifically including unspecified depressive disorder). Is it at least as likely as not (a 50% or better probability) that such disability is related directly to the Veteran's service/events therein? The rationale provided should address the November 2017 private mental disorders DBQ and the psychiatric assessment and opinion, completed by H. H.-G., PhD, linking the Veteran's unspecified depressive disorder to service, the cited medical literature (including "The effect of depression on the association between military service and life satisfaction"), and the Veteran's spouse's lay statements. All opinions must include rationale that cites to supporting factual data and medical principles. 2. Arrange for the Veteran to be examined by an appropriate physician to confirm his diagnosis of obstructive sleep apnea and determine its etiology. Following examination of the Veteran and review of his record, the examiner should: (a) Confirm the diagnosis of obstructive sleep apnea (OSA). (b) Identify the likely etiology for any OSA confirmed. Specifically, is it at least as likely as not that such disability is related directly to the Veteran's service/events therein, or was caused or aggravated (the opinion must include aggravation) by his service-connected acquired psychiatric disorder? If OSA is found to not have been caused, but to have been aggravated, by a service-connected acquired psychiatric disorder, to the extent possible, identify the degree of OSA impairment that is due to such aggravation. The rationale provided should address the January 2018 private sleep apnea DBQ, completed by M. B., M.D., linking the Veteran's OSA to his unspecified depressive disorder, the cited medical literature (including "Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort"), and the Veteran's spouse's lay statements. All opinions must include rationale that cites to supporting factual data and medical principles. 3. Thereafter, if (and only if) service connection for an acquired psychiatric disorder is granted, arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of the claimed headache disability. Following examination of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) the headache disability that is found on examination. (b) Identify the likely etiology for each headache disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it was either caused or aggravated (aggravation must be specifically addressed) by his service-connected acquired psychiatric disorder? If the Veteran's headaches are found to not have been caused, but to have been aggravated, by a service-connected acquired psychiatric disorder, to the extent possible, identify the degree of headache impairment that is due to such aggravation. The rationale provided should address the January 2018 private sleep apnea DBQ, completed by M. B., M.D., linking the Veteran's headaches to his unspecified depressive disorder and the cited medical literature (including ("Depression in Headaches: Chronification). All opinions must include rationale that cites to supporting factual data and medical principles. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.