Citation Nr: 22013232 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-04 502 DATE: March 9, 2022 ISSUES Whether a timely notice of disagreement was received for the August 12, 2016 decision notification for service connection for right hamstring disability (also claimed as tightening and pain). Whether a timely notice of disagreement was received for the August 12, 2016 decision notification for service connection for left hamstring disability (also claimed as tightening and pain). Entitlement to service connection for an anxiety disorder. Entitlement to service connection for sleep apnea. Entitlement to service connection for gastroesophageal reflux disease (also claimed as acid reflux). Entitlement to service connection for a right hamstring disability. Entitlement to service connection for a left hamstring disability. ORDER A timely notice of disagreement was received for the August 12, 2016 decision notification for service connection for right hamstring disability (also claimed as tightening and pain), and so to that extent only, the claim is granted. A timely notice of disagreement was received for the August 12, 2016 decision notification for service connection for left hamstring disability (also claimed as tightening and pain), and so to that extent only, the claim is granted. REMANDED Entitlement to service connection for an anxiety disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for gastroesophageal reflux disease (also claimed as acid reflux) is remanded. Entitlement to service connection for a right hamstring disability is remanded. Entitlement to service connection for a left hamstring disability is remanded. FINDINGS OF FACT 1. On August 12, 2016 the Department of Veterans Affairs (VA) mailed the Veteran notification of the August 2016 rating decision, which denied the Veteran's claims of entitlement to service connection for left and right hamstring disabilities. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran's notice of disagreement (NOD) submitted on January 3, 2017 was valid. CONCLUSIONS OF LAW 1. The Veteran filed a timely NOD to the August 2016 rating decision which denied the claim of entitlement to service connection for a right hamstring disability. 38 U.S.C. § 7105(a); 38 C.F.R. § 19.21. 2. The Veteran filed a timely NOD to the August 2016 rating decision which denied the claim of entitlement to service connection for a left hamstring disability. 38 U.S.C. § 7105(a); 38 C.F.R. § 19.21. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1982 to June 1986, November 2001 to August 2002, October 2002 to March 2003, November 2003 to May 2004, June 2005 to September 2006, and October 2006 to April 2008. This matter arises from an appeal to the Board of Veterans' Appeals (Board) from August 2015, November 2015 and August 2016 rating decisions issued by a Department of Veteran's Affairs Regional Office (RO). The Veteran testified in a videoconference Board hearing in October 2021 before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is associated with the claims file. As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board finds that further evidentiary development is required before the claims for service connection for an anxiety disorder, sleep apnea and gastroesophageal reflux disease (GERD) can be adjudicated. 1. Whether a timely notice of disagreement was received for the August 12, 2016 decision notification for service connection for right hamstring disability (also claimed as tightening and pain). 2. Whether a timely notice of disagreement was received for the August 12, 2016 decision notification for service connection for left hamstring disability (also claimed as tightening and pain). The Veteran contends that he filed a timely and valid Notice of Disagreement to an August 2016 rating decision which denied service connection for right and left hamstring disabilities. An appeal to the Board must be initiated by a Notice of Disagreement and completed by a Substantive Appeal after a Statement of the Case is issued to the claimant by VA. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.22, 19.29, 19.51, 19.52. Proper completion and filing of a Substantive Appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 19.22. With respect to a Notice of Disagreement, a notice of disagreement (NOD) consists of a completed and timely submitted copy of the form prescribed by VA. 38 C.F.R. § 19.21(a)(1). VA will not accept as a Notice of Disagreement a mere expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. Id. A claimant or his representative must file a Notice of Disagreement within one year from the date that the Agency of Original Jurisdiction (AOJ) mailed notice of a decision. 38 C.F.R. § 19.52. If a Notice of Disagreement is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 19.52, 20.1103. An untimely Notice of Disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). While the Board may waive the issue of the timeliness of a Substantive Appeal, an untimely Notice of Disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). In the instant case, the pertinent evidence of record shows that the Veteran filed a claim for entitlement to service connection for right and left hamstring disabilities on March 4, 2016. A rating decision dated August 5, 2016 denied service connection for these disabilities. The Veteran was notified of the decision and given his appeal rights in an August 12, 2016 notification letter. On January 3, 2017, VA received a Notice of Disagreement letter from the Veteran dated December 29, 2016. On December 12, 2017 VA sent the Veteran a letter informing him that his correspondence had been received, however his NOD was invalid because it was not submitted on the proper form. The letter informed the Veteran that he needed to complete a VA Form 21-0958 in order to process the NOD. On January 11, 2018 the Veteran re-submitted the December 29, 2016 letter along with a completed VA Form 21-0958, which was signed and dated December 29, 2016. The VA-Form 21-0958 form indicated that additional pages were attached as well as a notation that the Veteran's argument was contained in the December 29, 2016 letter. In December 2018 correspondence, and in further detail during the October 2021 Board hearing, the Veteran argued that he had in fact mailed the completed VA Form 21-0958 dated December 29, 2016 when he originally submitted his Notice of Disagreement on January 3, 2018. He stated that he still has the original electronic claim file which reflects that his Notice of Disagreement letter and the completed VA Form 21-0958 were created on the same date. He asserts that while he is certain that he mailed the form in a timely manner, it his belief that upon receipt by VA, the form was somehow not scanned in along with the December 29, 2016 letter. The RO has since indicated in the January 2019 statement of the case that the VA Form 21-0958 was not received at the same time that the correspondence was received on January 3, 2017 and therefore a timely appeal was not received. To this end, there is a well-established presumption of regularity under which it is presumed that government officials have properly discharged their official duties. United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). See also Ashley v. Derwinski, 2 Vet. App. 307 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (discussing "presumption of regularity" under which it is presumed that Government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity). Thus, if the Veteran had submitted the VA Form 21-0958 at the same time that correspondence was received on January 3, 2017, it can be presumed that an employee who received it would have acted to process the form and associate it with the claims file. Thus, the Board finds that the presumption of regularity has attached, and the Veteran must show by clear evidence that the presumption of regularity has been rebutted. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in AOJ operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). The Board has reviewed the evidence of record, particularly the VA Form 21-0958 which is signed and dated for December 29, 2016, and which does in fact reference the NOD letter received by VA on January 3, 2017. Furthermore, the Veteran has credibly reported that he did mail this form when he submitted the initial January 3, 2017 correspondence. The Board finds that the Veteran is competent to report as to that which he experienced directly. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As such, when reviewing the totality of the evidence the Board finds that the evidence is sufficient to overcome the presumption of regularity. Therefore, with affording the Veteran the benefit of the doubt, there is at least an approximate balance of positive and negative evidence as to whether the Veteran submitted a timely notice of disagreement to the August 12, 2016 rating decision notification for service connection for right and left hamstring disabilities. See Lynch v. McDonough, 999 F.3d 1391, at 1395 (Fed. Cir. 2021). Therefore, to that extend only, the claims are granted. 38 U.S.C. § 7105(a); 38 C.F.R. § 19.21. REASONS FOR REMAND 1. Entitlement to service connection for a right hamstring disability is remanded. 2. Entitlement to service connection for a left hamstring disability is remanded. As explained in further detail above, the Board has determined that a timely notice of disagreement was received in response to the AOJ's August 2016 rating decision denying service connection for bilateral hamstring disabilities. A statement of the case adjudicating the merits of the Veteran's claims has not yet been issued. See 38 C.F.R. § 19.29, 19.30. For these reasons, a remand is necessary to satisfy a regulatory or statutory duty, and the RO must now provide the Veteran with a statement of the case on these issues. See 38 C.F.R. § 20.802; Manlincon v. West, 12 Vet. App. 238 (1999). 3. Entitlement to service connection for an anxiety disorder is remanded. The Veteran is claiming service connection for his anxiety disorder and claims that this condition is related to his active- duty service. The Veteran has asserted that both stress and anxiety due to his service-connected testicular cancer as well as racial discrimination that he faced while on active duty led to his anxiety. The Veteran's service treatment records are silent for any diagnosis, treatment or complaints for a mental health disorder. The Veteran was afforded a VA examination in December 2018. At that time the examiner diagnosed unspecified anxiety disorder. The examiner opined that it was less likely than not that the Veteran's anxiety was due to or the result of his testicular cancer residuals. In providing a rationale the examiner explained that the Veteran did not indicate stress due to his residuals of his testicular cancer and that he was "more stressed about occupational problems that began in service and racism that he encountered." Upon review of the evidence of record, the Board finds that the opinion of the December 2018 VA examiner is inadequate for adjudication purposes, as the Board finds the opinion to be conclusory. A general conclusory statement is not adequate for a rationale. The explanation should contain clear conclusions and a supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board finds that the examiner's conclusory statement is an inadequate rationale because it does not include a reasoned medical explanation connecting the examiner's clear conclusions with supporting data. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, while the examiner noted that the Veteran was more stressed about occupational problems and racism that he experienced while in service, no opinion was provided on whether it was more likely than not the Veteran's anxiety was due to those in-service experiences. Accordingly, the Board finds that a new opinion is warranted. Finally, the Board recognizes that the January 2019 VA-Form 9 the Veteran asserted that he disagreed with the December 2018 VA examiner's opinion because during the examination she did not properly question him as it relates to his feeling on his testicular cancer or the racism that he experienced while in service. During the October 2021 Board hearing the Veteran continued to assert his belief that the December 2018 examination was inadequate because the examiner did not properly elicit information as it relates to his testicular cancer or claimed experiences of racism. Therefore, on remand the Board finds that the examiner must adequately address the Veteran's lay assertions as it relates to the etiology of his anxiety disorder. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran claims that he is entitled to service connection for sleep apnea because this condition had its onset in and has continued since his active-duty service. The Veteran's service treatment records are silent for any diagnosis or treatment for sleeping problems. On an October 2007 examination the Veteran checked "no" to the question of whether he had frequent trouble sleeping. VA treatment notes show than an overnight polysomnography was conducted in September 2014. At that time the impression was moderate severe obstructive sleep apnea-hypopnea syndrome. The examiner indicated that the study was limited by low sleep efficiency which may have underestimated the severity of the Veteran's sleep apnea. In September 2015 and December 2018 correspondence the Veteran asserted that his sleep apnea was secondary to the stress and anxiety related to his service-connected testicular cancer. He also asserted his belief that anger and anxiety in relation to racial discrimination from colleagues and senior officials while on active duty caused him to have severe sleeping problems. Additionally, the Veteran asserted that environmental conditions which he encountered while on active duty and deployed in Italy caused or aggravated his sleep apnea. The Veteran specially contends that while he was deployed, he was exposed daily to environmental hazards such as burn pits of several harmful agents and toxins. During the October 2021 Board hearing the Veteran also testified that in addition to his deployment to Italy, he was also in the Persian Gulf and therefore he should be granted service connection for sleep apnea on a presumptive basis. Finally, the Veteran testified that he believes that his sleep apnea is secondary to his service-connected rhinitis. The Board notes that in a March 2021 Board decision the Veteran was granted service connection for non-allergic rhinitis effective April 5, 2008. Initially, while the Board acknowledges that the Veteran claims that his sleep apnea falls under the presumptive service connection for Persian Gulf War veterans, a recent case from the United States Court of Appeals for Veterans Claims (CAVC) concludes that sleep apnea is not eligible for presumptive service connection as a medically unexplained chronic multi symptom illness under 38 C.F.R. § 3.317. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Therefore, sleep apnea does not fall within one of the presumptive diseases under 38 C.F.R. § 3.317. However, this does not preclude the Veteran from seeking direct service connection. The Board notes that the Veteran has not been provided with VA examination for his claimed sleep apnea nor has he been provided with a medical opinion to address the issue of etiology. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the Board finds that the McLendon criteria have been satisfied. Specifically, there is competent evidence that the Veteran has sleep apnea disability which may be directly or secondarily associated with his active service. The Board finds that there is insufficient competent medical evidence on file for the Board to make a decision on the claims. As such, remand for examinations and medical opinions is necessary. Finally, the Board notes that while the Veteran has asserted that he had service in the Persian Gulf, the Board is unable to determine from the Veteran's DD-214 and service personnel records, the dates of his deployment and service in the Persian Gulf. Therefore, on remand the RO should make all reasonable efforts to confirm any Persian Gulf deployments. 5. Entitlement to service connection for gastroesophageal reflux disease (also claimed as acid reflux) is remanded. The Veteran contends that he is entitled to service connection for GERD as it is related to his active- duty service. The Veteran's service treatment records are silent for any diagnosis or treatment for a digestive disorder. On an October 2007 examination the Veteran checked "no" to the question of whether he had frequent indigestion or heartburn. VA treatment records reflect that the Veteran has a current diagnosis of GERD. In a September 2015 correspondence the Veteran asserted that he believed that his GERD was secondary to the stress and anxiety related to his service-connected testicular cancer. The Veteran asserted his belief that anger and anxiety in relation to above mentioned racial discrimination while in service caused or aggravated his GERD. Finally, the Veteran asserted that environmental conditions which he encountered while on active duty deployed in Italy were the caused or aggravated his GERD. During the October 2021 Board hearing the Veteran also testified that because he is a Gulf War veteran, he should be granted service connection for GERD on a presumptive basis. However, while the Board acknowledges that the Veteran claims that his GERD falls under the presumptive service connection for Persian Gulf War veterans, a recent case from the United States Court of Appeals for Veterans Claims (CAVC) concludes that sleep apnea is not eligible for presumptive service connection as a medically unexplained chronic multi symptom illness under 38 C.F.R. § 3.317. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Therefore, GERD does not fall within one of the presumptive diseases under 38 C.F.R. § 3.317. However, this does not preclude the Veteran from seeking direct service connection. The Board notes that the Veteran has not been provided with a VA examination for his GERD, nor has he been provided with a medical opinion to address the issue of etiology. In consideration of the above, the Board finds that the McLendon criteria as outlined above have been satisfied as it relates to this claim. Specifically, there is competent evidence that the Veteran has a diagnosis of GERD which may be directly or secondarily associated with his active service. The Board finds that there is insufficient competent medical evidence on file for the Board to make a decision on the claim. As such, remand for an examination and medical opinion is necessary. Finally, the Board takes note that during the October 2021 Board hearing the Veteran testified that he is out of the country and unable to attend in-person VA examinations. As such, on remand the AOJ should make all reasonable efforts to obtain medical opinions using the Acceptable Clinical Evidence (ACE) process by telemedicine examinations. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Obtain the Veteran's complete service personnel records to confirm any Persian Gulf deployments. 3. After completing the above, and any new records are added to the claims file, obtain a VA opinion from an appropriate and qualified psychologist or psychiatrist using the Acceptable Clinical Evidence (ACE) process to address the nature and etiology of the Veteran's anxiety disorder. It is left to the examiner's discretion to determine whether the requested etiological opinion may be obtained without a video telehealth examination. The claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: (a) Whether it is at least as likely as not that the Veteran's anxiety disorder had its onset in service or is otherwise related to service, to include his claimed experiences with racism while in service. When considering this question, the examiner is to consider all lay statements of record carefully, VA treatment records, and private treatment records and evaluations. The examiner's attention is directed to the Veteran's September 2015 and December 2018 correspondence as well as his October 2021 Board hearing testimony where he reported that he experienced instances of racism from colleagues and superiors while on active- duty service. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (b) Opine whether it is at least as likely as not that the Veteran's anxiety disorder was caused or aggravated by the Veteran's service-connected testicular cancer. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's anxiety disorder. (c) If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected disability. A detailed rationale for all opinions must be provided. 4. After completing the above, and any new records are added to the claims file, obtain a VA opinion from an appropriate examiner using the Acceptable Clinical Evidence (ACE) process to address the nature and etiology of the Veteran's sleep apnea. It is left to the examiner's discretion to determine whether the requested etiological opinion may be obtained without a video telehealth examination. The claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: (a) Whether it is at least as likely as not that the Veteran's sleep apnea disability had its onset in service or is otherwise related to service, to include as due to environmental hazards from burn pits while deployed in Italy, or from stress and anxiety related to the Veteran's reported instances of racism while in service. (b) If, and only if Persian Gulf service is confirmed, the examiner is asked to opine whether it is at least as likely as not that the Veteran's sleep apnea disability is caused by any environmental factor related to Gulf War exposures. (c) Opine whether it is at least as likely as not that the Veteran's sleep disability was caused or aggravated by the Veteran's service-connected testicular cancer. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's sleep apnea. (d) Opine whether it is at least as likely as not that the Veteran's sleep disability was caused or aggravated by the Veteran's service-connected non-allergic rhinitis. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's sleep apnea (e) If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected disability. A detailed rationale for all opinions must be provided. 5. After completing the above, and any new records are added to the claims file, obtain a VA opinion from an appropriate examiner using the Acceptable Clinical Evidence (ACE) process to address the nature and etiology of the Veteran's GERD. It is left to the examiner's discretion to determine whether the requested etiological opinion may be obtained without a video telehealth examination. The claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: (a) Whether it is at least as likely as not that the Veteran's GERD had its onset in service or is otherwise related to service, to include as due to environmental hazards from burn pits while deployed in Italy or from stress and anxiety from the Veteran's reported instances of racism while in service. (b) If, and only if Persian Gulf service is confirmed, the examiner is asked to opine whether it is at least as likely as not that the Veteran's GERD is caused by any environmental factor related to Gulf War exposure. (c) Opine whether it is at least as likely as not that the Veteran's GERD was caused or aggravated by the Veteran's service-connected testicular cancer. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's OSA. (d) If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's disabilities found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately caused by the service-connected disability. A detailed rationale for all opinions must be provided. 6. Furnish the Veteran a statement of the case (SOC) that addresses the issues of entitlement to service connection for a right and left hamstring disabilities. If the Veteran perfects an appeal for the issues of entitlement to service connection for a right and left hamstring disabilities by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. (Continued on next page.) 7. Thereafter, readjudicate the remaining issues on appeal as noted above. If the determination remains unfavorable to the Veteran should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.