Citation Nr: 22014402
Decision Date: 03/12/22	Archive Date: 03/12/22

DOCKET NO. 17-56 232
DATE: March 12, 2022

ORDER

The Veteran's appeal of the determination that his perfection of his appeal of his claims relating to an increased rating for gastroesophageal reflux disease (GERD) and a gastrointestinal disability was untimely is denied.

Entitlement to an effective date of January 26, 2015, but no earlier, for service connection of migraine headaches is granted.

Entitlement to an effective date of January 26, 2015, but no earlier, for service connection of lumbosacral strain is granted.

The request to reopen a previously denied claim for service connection for sleep apnea is granted.

REMANDED

Entitlement to service connection of a right knee disability is remanded.

Entitlement to service connection of sleep apnea is remanded.

Entitlement to a disability rating in excess of 10 percent for lumbosacral strain is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 

FINDINGS OF FACT

1. In December 2016 a rating decision granted service connection of GERD and denied service connection of a gastrointestinal disability.

2. In September 2017 Veteran filed a notice of disagreement (NOD) relating to his GERD and gastrointestinal claims.

3. In March 2018 the Department of Veterans Affairs (VA) issued a statement of the case (SOC) relating to the Veteran's GERD and gastrointestinal claims.

4. In June 2018 the Veteran filed a Form 9 purporting to perfect his appeal of the December 2016 rating decision relating to his GERD and gastrointestinal claims. 

5. The weight of the evidence is against a finding that the March 2018 SOC was sent to an incorrect address, or that VA otherwise failed to follow its regular mailing procedures. 

6. On January 26, 2015, the Veteran contacted his senator regarding, in pertinent part, his claims for service connection of migraine headaches and a low back disability.

7. In March 2015 VA decided to treat the letter submitted to the Veteran's senator as a claim of service connection for, in pertinent part, migraine headaches and a low back disability.

8. A December 2016 rating decision denied entitlement to service connection of sleep apnea; no appeal of this decision was initiated. 

9. Additional evidence received since the December 2016 rating decision denying entitlement to service connection of sleep apnea is new, relates to unestablished facts necessary to support the claim, and raises a reasonable possibility of substantiating the claim. 

CONCLUSIONS OF LAW

1. The criteria for submission of a timely Form 9 relating to the appeal of the December 2016 decision relating to his GERD and claimed gastrointestinal disability have not been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.32, 19.52.

2. The criteria for entitlement to an effective date of January 26, 2015, but no earlier, for service connection of migraine headaches have been met. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400.

3. The criteria for entitlement to an effective of January 26, 2015, but no earlier, for service connection of lumbosacral strain have been met. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400.

4. The December 2016 rating decision that denied a claim for service connection of sleep apnea became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

5. New and material evidence has been received to reopen the claim of entitlement to service connection of sleep apnea. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1979 to November 1990. The Board of Veterans' Appeals will address the pertinent procedural history of each of the Veteran's claims herein. 

1. The Veteran's appeal of the determination that his perfection of his appeal of his claims relating to gastroesophageal reflux disease (GERD) and a gastrointestinal disability was untimely is denied. 

At issue is whether the Veteran timely perfected an appeal of a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) rating decision relating to his service-connected GERD and a claimed gastrointestinal disability. As discussed further below, the timeline for initiation and perfection of an appeal is determined by the date a Veteran is notified by mail of a rating decision and the date a statement of the case (SOC) is issued. The December 2016 rating decision was issued in response to a July 2016 claim; the Veteran timely filed a notice of disagreement (NOD) and on March 23, 2018, the RO issued an SOC. Accordingly, for the purposes of determining the law applicable to this issue, the Board has determined that the pertinent period runs from July 2016 to May 2018. For the purposes of the remaining discussion of the law applicable to the timeliness of the Veteran's June 2018 Form 9 the Board's analysis should be read as pertaining to the law in effect during that period. 

An appeal consists of a timely filed NOD and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.20. Together, these two filings constitute a "perfected" appeal, and it is the timely filing of the substantive appeal that perfects the appeal. A claimant must file a properly completed NOD within one year from the date that VA mails notice of the disputed decision. 38 C.F.R. § 19.52. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or, as discussed further below, correspondence containing the necessary information. 38 C.F.R. § 19.22. 

Generally, a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 19.52. The RO may close the appeal without notice to an appellant or his or her representative for failure to respond to an SOC within the period allowed. 38 C.F.R. § 19.32.  However, if a substantive appeal is subsequently received within the 1-year appeal period relating to the disputed rating decision, the appeal will be considered to be reactivated. 38 C.F.R. § 19.32. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 19.52.

Here, the record reflects that the Veteran's Form 9 was received by VA more than 60 days following the issuance of the March 2018 SOC. That claims file reflects that VA received the Veteran's Form 9 on June 18, 2018, matching the date on both the attached cover sheet, and the date written by the Veteran on the Form 9. As the March 2018 SOC was issued more than one year following the December 2016 notification of the disputed rating decision, none of the 1-year period from the date of mailing of the appealed determination remained. Accordingly, on its face, the Form 9 cannot be considered timely under the deadlines provided for by 38 C.F.R. § 19.52.     

However, there remain additional avenues under which either the Veteran's substantive appeal may be considered timely, or the Board may consider the Veteran's GERD and gastrointestinal disability claims properly before it, lack of timely substantive appeal notwithstanding.

First, a substantive appeal may take a form other than a VA Form 9. A substantive appeal may consist of correspondence containing the necessary information. 38 C.F.R. § 19.22. The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. 38 C.F.R. § 19.22. The same deadlines apply to a substantive appeal perfected this way as apply to one perfected by Form 9. Here, the Board finds that no such correspondence was received within 60 days of the March 2018 SOC. As noted above, at the time of the March 2018 SOC, no measure of the 1-year appeal period following notification of the disputed December 2016 rating decision remained. Accordingly, the Board finds that no substantive appeal, Form 9 or otherwise, was timely submitted under the deadlines provided for by 38 C.F.R. § 19.52.     

Second, an extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 19.53. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. The record does not reflect that any such request was made or granted.

Third, the Veteran contends that he did not receive a copy of the March 2018 SOC at the time of its issuance, but that he received it sometime later. In his October 2018 NOD as to the timeliness issue, the Veteran stated that he filed his Form 9 within two weeks of his actual receipt of the March 2018 SOC. At his October 2021 Board hearing the Veteran stated that he did not know why he did not receive the March 2018 SOC but alluded to a change in address as the possible reason. 10/05/2021, Hearing Transcript, p. 13.  

Generally, the presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to the officials at the RO who were responsible for issuing the March 2018 SOC to the Veteran. See Woods v. Gober, 14 Vet. App. 214, 22021 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO).

The Veteran may rebut the above presumption by submitting clear evidence to the effect that VA's regular mailing practices were not followed in this case. In this regard, the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process. Jones v. West, 12 Vet. App. 98, 102 (1998). Conversely, clear evidence sufficient to rebut the presumption of regularity has been found when VA addressed communications to a wrong street name, wrong street number, or wrong zip code in circumstances indicating that such errors were consequential to delivery. See, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993).

As noted above, the 60-day window for filing of a substantive appeal begins running on the date the SOC is mailed, not the date it is received; and the date of mailing of the SOC will be presumed to be the same as the date of the SOC. 38 C.F.R. § 19.52. Upon issuance, the SOC will be forwarded to the appellant at the latest address of record. 38 C.F.R. § 19.30. Thus, the presumption in place is that the March 2018 SOC was mailed to the Veteran's address of record on March 23, 2018. 

The Board finds that there are three addresses which are potentially relevant to the question of whether there exists clear evidence that VA's regular mailing practices were not followed with regard to the March 2018 SOC. One address is in Killeen, Texas; the second address is in Harker Heights, Texas; and the third address is in California. The March 2018 SOC was sent to the Harker Heights, Texas address. 

The record reflects that the Killeen, Texas address last appears in a record of a December 2017 telephone call between VA and the Veteran, at which time the Veteran was identified as the person contacted, and his address was identified as the Killeen, Texas address. 12/08/2017, VA 21-0820 Report of General Information. A subsequent telephone call record identifies the Veteran's address as the Harker Heights, Texas address. 12/21/2017, VA 21-0820 Report of General Information. The Harker Heights, Texas, address was recorded at the time of telephone calls from VA to the Veteran later in December 2017 and in January 2018. In a February 2018 written statement to VA the Veteran provided the Harker Heights address. 02/07/2018, VA 21-4138 Statement in Support of Claim. VA again recorded the Harker Heights address at the time of a telephone call in February 2018. In March 2018 a notification letter was sent to the Veteran at the Harker Heights address; there is no reflection that this letter was returned as undeliverable. The Harker Heights address was recorded at a March 2018 VA examination. 03/07/2018, C&P Exam. As stated above, the March 2018 SOC was mailed to the Veteran at the Harker Heights address. 

Following the March 2018 SOC, the Harker Heights address was recorded in a March 2018 telephone call between VA and the Veteran. 03/24/2018, VA 21-0820 Report of General Information. A March 2018 notification letter was sent to the Veteran at the Harker Heights address; there is no reflection that this letter was returned as undeliverable. Additional notification letters were sent to the Harker Heights address in March 2018 and April 2018; there is no reflection that these letters were returned as undeliverable. The Veteran used Harker Heights address on a May 2018 application for benefits. 05/20/2018, VA 21-526EZ, Fully Developed Claim (Compensation). The address was again recorded during a telephone call between VA and the Veteran in early June 2018. 06/05/2018, VA 27-0820 Report of General Information. 

The California address appears on the Veteran's June 18, 2018, Form 9. However, there is no reflection in the record that this was the Veteran's address of record until that date.

The Board finds that there is no clear evidence that VA failed to follow its regular mailing practices with regard to the mailing of the March 2018 SOC. The weight of the evidence is against a finding that the March 2018 SOC was not mailed on the date it was issued; or that the March 2018 SOC was not mailed to the Veteran's address of record. 

Finally, the Board acknowledges that a substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). To date in this case, there has been no waiver, explicit or implicit, of the substantive appeal requirement by VA. The Veteran was informed by correspondence in September 2018 and by SOC in October 2018 that VA considered his purported June 2018 substantive appeal untimely. Therefore, the Board must determine whether an exercise of discretion in waiving the substantive appeal requirement is appropriate in this case. The Board concludes that an exercise of discretion in waiving the substantive appeal requirement is not appropriate in this case. 

Thus, the Board finds that the weight of the evidence is against a finding that the Veteran executed his move from Texas to California until after the March 2018 SOC was sent. A VA nursing triage note reflects that the Veteran presented to medical providers in Texas on March 20, 2018. A May 2018 administrative note in the Veteran's VA treatment records reflects the Veteran's report to providers in Texas that he would be in California for "an extended time." A July 2018 VA urgent care note reflects that the Veteran stated that he had "recently" moved to the area from Texas. 09/19/2018, CAPRI, p. 25. An August 2018 VA mental health treatment note reflects the Veteran's report that he had been in the area for "three months." Id, p. 4.  Three months prior to the August 2018 presentation to California VA mental health providers would be May 2018, approximately two months after the date of the March 2018 SOC. 

As noted above, the record does not reflect any timely request by the Veteran for an extension. The record does not reflect any error by VA or deviation from regular practice in the timing or address of the mailing of the March 2018 SOC. The record does not reflect that the Veteran moved from Texas to California until approximately two months after the presumed mailing of the March 2018 SOC.

The Board acknowledges the Veteran's August 2016 written statement to VA alleging that the September 1991 denial of his headache and low back disability claims were the result of clear and unmistakable error (CUE). 08/31/2016, Correspondence. The Veteran contends that his complete service treatment records (STRs) were not available to the RO at the time of the September 1991 rating decision and that, had they been, his claims would have been granted.  

A CUE motion is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

The September 1991 rating decision reflects consideration of the fact that the Veteran's complete STRs were not available to adjudicators at the time. In 1991, as now, VA has a statutory duty to assist Veterans, to include obtaining copies of STRs. See 38 U.S.C. § 5103A; see e.g., Moore v. Derwinski, 1 Vet. App. 401 (U.S. 1991). However, a failure in the duty to assist does not establish CUE. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002).

Though the Veteran has alleged CUE, he has not made any claims of error beyond duty to assist errors which, categorically cannot constitute CUE.  

In light of the foregoing, the Veteran's appeal of the determination that his perfection of his appeal of his claims relating to gastroesophageal reflux disease (GERD) and a gastrointestinal disability is denied. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.32, 19.52.

2. Entitlement to an effective date of January 26, 2015, but no earlier, for service connection of migraine headaches and entitlement to an effective date of January 26, 2015, but no earlier, for service connection of lumbosacral strain are granted. 

The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400

Service connection is in effect for migraine headaches and lumbosacral strain, with identical effective dates of March 2, 2015, purportedly the date the claims for those disabilities were received. August 2016 correspondence from the Veteran reflects his contention that he is entitled to an effective date calculated on the basis of a March 1991 claim for service connection of headaches and a back disability (now characterized as migraines and lumbosacral strain). The Veteran's March 1991 claim was denied by a September 1991 rating decision; the Veteran was notified of this decision by letter in October 1991.

Under the regulations in effect at the time of the March 1991 claim and September 1991 rating decision, a claimant must file a notice of disagreement within 1 year from the date of mailing of notification of the initial review and determination; otherwise, that determination will become final. 38 C.F.R. § 19.129 (1991). 

The record does not reflect any initiation of an appeal of the September 1991 decision. The Board acknowledges that in 1991 an NOD could be constituted of a written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction; no special wording or specific form was required. 38 C.F.R. § 19.118 (1991). In this regard, the Board notes that following the October 1991 notification letter, no further communication by the Veteran to VA is reflected in the file until April 2014. Accordingly, the Board concludes that the September 1991 rating decision became final in September 1992, and after that point no claim for service connection of headaches and a low back disability remained pending. Accordingly, no effective date may be assigned relating to the date of the March 1991 claim. 

The claims file includes an item that was assigned a receipt date of March 3, 2015. See 03/03/2015, Congressionals. However, the item itself is comprised of several distinct memoranda and pieces of communication sent and received by different parties at different times. 

The record reflects that the Veteran sent a fax to his senator on January 26, 2015; this fax included correspondence from the Veteran reflecting his desire to seek service connection for several disabilities, including headaches. 03/03/2015, Congressionals, pp. 10-11. On January 28, 2015, the Veteran's senator forwarded the correspondence to VA. Id., p. 8. In correspondence dated March 23, 2015, VA informed the senator that it would accept the Veteran's letter to the senator's office as a claim for service connection of several disabilities, including headaches. Id., p. 3. 

A July 2015 deferred rating decision reflects that VA reviewed the September 1991 denial of the Veteran's headache and back claims, a decision rendered without the Veteran's complete STRs. The deferred rating decision reflects that VA undertook additional efforts to obtain the Veteran's complete STRs. In November 2015 the RO issued a rating decision granting service connection for migraine headaches and lumbosacral strain with effective dates of March 2, 2015. 

The origin of the lumbosacral strain claim addressed in the November 2015 rating decision is unclear. However, the November 2015 rating decision identifies all the claims addressed therein as arising from the same claim filing. VA is obligated to liberally construe claims based on the reasonable expectations of a non-expert claimant and to determine all potential claims raised by the evidence. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (U.S. 2009). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. Accordingly, the Board will not disturb the RO's conclusion that the Veteran's January 2015 correspondence to his senator included a claim for a low back disability, now characterized as lumbosacral strain. 

As noted above, VA informed the Veteran, through correspondence to his senator, that it would accept the Veteran's letter to the senator's office as a claim of service connection. That letter was received by the senator's office on January 26, 2015. Accordingly, the Board concludes that the Veteran's date of claim is January 26, 2015. In light of the foregoing, the Board finds that the criteria for entitlement to an effective date of January 26, 2015, but no earlier, for service connection of migraine headaches and entitlement to an effective date of January 26, 2015, but no earlier, for service connection of lumbosacral strain are met, and the same are hereby granted. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400.

3. The request to reopen a previously denied claim for service connection for sleep apnea is granted. 

The issue certified to the Board is whether new and material evidence has been received warranting a reopening of a previously denied claim for service connection of sleep apnea. The Board acknowledges a June 2018 rating decision and September 2019 SSOC in which the RO informed the Veteran that it considered his sleep apnea claim reopened. However, the Board must determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In addition to the Board's responsibility review such claims de novo, a review of this claim's procedural history is necessary to clarify the nature and scope of the claim currently on appeal. 

A March 2016 RO rating decision denied a December 2015 claim of service connection of sleep apnea. The Veteran was notified of the decision in March 2016. 

In the following months the Veteran submitted additional written statements regarding his sleep apnea, and, in July 2016, filed a claim of service connection of sleep apnea. In August 2016 VA informed the Veteran that it construed his filings as a request to reconsider their March 2016 denial and informed him that the RO would take no action his claim unless the Veteran submitted new evidence; filed an appeal of the prior decision; or identified a clear and unmistakable error (CUE) in the March 2016 decision. 08/24/2016, VCAA/DTA Letter. The Veteran submitted further lay statements regarding his sleep apnea, including two lay statements received by VA in September 2016. The RO issued a new rating decision in December 2016 denying the Veteran's claim. The Veteran was notified of this decision by letter in December 2016.  

RO decisions become final within one year of the date that that RO mails notice of the determination. 38 C.F.R. §§ 19.52, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 

The Board finds that the December 2016 rating decision constituted a decision on the merits of the Veteran's sleep apnea claim, rather than a denial of a request to reopen. As noted above, in August 2016 the RO informed the Veteran that it would take no action on his July 2016 claim unless he submitted new and material evidence; initiated an appeal or identified CUE. The record does not reflect any initiation of an appeal of the March 2016 rating decision, or receipt of any allegations of CUE relating to the Veteran's sleep apnea claim. However, as noted above, VA did receive additional lay statements relating to the Veteran's sleep apnea claim in September 2016; that the RO proceeded to issue a new rating decision in response reflects that it considered these statements sufficient to warrant reopening the sleep apnea claim. Accordingly, the Board finds that the December 2016 rating decision constituted a decision on the merits relating to the December 2015 sleep apnea claim, which had remained pending after the submission of new and material evidence in September 2016 within one year of the March 2016 rating decision notification. 

In May 2018 the Veteran again filed a claim of service connection for sleep apnea. In a June 2018 rating decision, the RO informed the Veteran that it considered his claim reopened, but again denied the claim on the merits. The Veteran filed an NOD in September 2018. An SOC was issued in May 2019, and the Veteran timely perfected his appeal by Form 9 in July 2019. 

The June 2018 rating decision does not identify the evidence the RO used to determine that reopening was warranted. The Board has reviewed the claims file and finds that no new and material evidence relating to the Veteran's sleep apnea claim was received in the year following the December 2016 rating decision. Accordingly, no claim at issue in the December 2016 remained pending at the time of the June 2018 rating decision. Therefore, the question before the Board is whether, in the period from December 2017 onward, new and material evidence relating to the Veteran's sleep apnea claim was received. 

The Board finds that new and material evidence has been received since the last final rating decision in December 2016. Evidence received since the December 2016 rating decision includes July 2019 lay statements from two individuals who knew the Veteran during his period of active service. These lay statements reflect that the Veteran had symptoms of loud snoring at night and difficulty staying awake during the day. This non-duplicative evidence speaks to the matter of whether the Veteran's claimed sleep apnea had its onset during his period of active service. Consequently, the Board finds new and material evidence has been received and that the claim for service connection of sleep apnea must be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103.

REASONS FOR REMAND

1. Entitlement to service connection for a right knee disability is remanded.

As with the lumbar spine disability claim discussed above, the origin of the current right knee disability claim is unclear. The Board finds it necessary to clarify the nature and scope of the Veteran's right knee claim. As discussed above, VA accepted the Veteran's January 2015 letter to his senator as a claim of service connection. In that letter, the Veteran identified a fractured and dislocated ankle. 03/03/2015, Congressionals, p. 11. VA accepted that letter as a claim of service connection of, inter alia, a fractured and dislocated ankle.  Id., p. 3. In November 2015 the RO denied a claim for "right lateral collateral ligament sprain with closed fracture and dislocation status post fixation of right ankle (claimed as right ankle fracture and dislocation)." The Veteran filed NOD in July 2016. The July 2016 NOD identified a May 2016 rating decision as the decision being appealed. The May 2016 rating decision did not address any claim relating to the right ankle or the right knee. August 2016 correspondence reflects that the RO construed this NOD as relating to both the November 2015 and May 2016 rating decisions. 08/12/2016, DRO Process Explanation Letter. In August 2017 the RO issued an SOC identifying, inter alia, the issue of service connection for right lateral collateral knee sprain. In a written statement attached to his October 2017 Form 9 the Veteran continued this characterization of the issue on appeal relating to a knee disability, characterizing it as "knee strain." 

At his October 2021 hearing the Veteran, through his representative, characterized one of the issues on appeal as service connection of "right lateral collateral knee strain." 10/05/2021, Hearing Transcript, p. 5. The Veteran testified that he experienced symptoms of this disability during his period of active service. Id., pp. 5-6. 

The record does not reflect any initial claim for a right knee disability, nor does the record reflect any NOD relating to a right knee claim. Generally, absence of a valid NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). Absence of a valid NOD is a jurisdictional bar to appellate consideration. This defect may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). However, in the instant case, it was VA who first represented to the Veteran that a claim for a right knee disability was validly on appeal, to include affording him the opportunity to offer testimony on the issue at a Board hearing.  

Extensive judicial precedent characterizes the veterans' benefits system as "uniquely pro-claimant" and even paternalistic. See, e.g., Nolen v. Gober, 222 F.3d 1356, 1361 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000). Further, while a claim is pending either before the RO or the Board, the relationship between VA and an appellant is non-adversarial as well as pro-claimant. See Forshey v. Principi, 284 F.3d 1335, 1354-55 (Fed. Cir. 2002) (en banc). The entire thrust of the VA's non-adversarial claims system is predicated upon a structure which provides for notice and in the context of veterans' benefits, where the system of awarding compensation is so uniquely pro-claimant, the importance of systemic fairness and the appearance of fairness carries great weight. Smith v. Wilkie, 32 Vet. App. 332, 337 (U.S. 2020). For the Board to reverse VA's representations to this point, i.e., that there existed a valid appeal for a right knee disability, would run contrary to the pro-claimant, non-adversarial veterans' benefits system.  

Accordingly, and in light of VA's representations to the Veteran that a claim of service connection for a right knee disability was validly on appeal, the Board concludes that it is appropriate to construe a claim of service connection of a right knee disability as validly before it. 

The Veteran is entitled to only one review on appeal. 38 U.S.C. § 7104(a). Here, there has not been an appropriate initial adjudication of the Veteran's right knee claim. Accordingly, the Veteran's right knee claim should be remanded for appropriate adjudication in the first instance by the RO. 

2. Entitlement to service connection of sleep apnea is remanded.

The Veteran seeks service connection for sleep apnea. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

A September 2019 VA examiner documented a January 2016 diagnosis of obstructive sleep apnea (OSA). The examiner acknowledged, among other evidence, July 2019 lay statements by other service members describing the Veteran's in service snoring and difficulty falling asleep However, the examiner stated that there was "no nexus between the Veteran's in-service injury, event, or illness to include falling asleep/snoring and his current OSA." 09/13/2019, C&P Exam, p. 2. The examiner stated that "[f]alling asleep/snoring are nonspecific signs/symptoms which are not pathognomonic for OSA.  Therefore, OSA is not a diagnosis based on nonspecific signs or symptoms, but a diagnosis based on objective PS. No in-service diagnosis of OSA was found." Id. 

The Board finds this opinion to be inadequate. Service connection will be granted if the evidence demonstrates that a claimed disability was incurred in service. Therefore, it is not sufficient to state that snoring and falling asleep are not causes of sleep apnea; rather, it must be determined whether it is at least as likely as not that the Veteran's sleep apnea had its onset while in service. An adequate VA examination must discuss the Veteran's in-service snoring and falling asleep as possible symptoms of a sleep apnea disability that had already manifested, not as in-service causes of a sleep apnea disability. 

Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Veteran's sleep apnea claim must be remanded to obtain a VA medical opinion that adequately addresses whether it is at least as likely as not that the Veteran's claimed sleep apnea had its onset during his active service. 

3. Entitlement to an initial disability rating in excess of 10 percent for lumbosacral strain is remanded.

A November 2015 rating decision granted the Veteran service connection of a disability characterized as "lumbosacral strain" and assigned an initial disability rating of 10 percent. The Veteran's July 2016 NOD reflects that he is seeking a higher initial disability rating. 

The Board finds that the Veteran's lumbar spine disability claim should be remanded to obtain a VA medical examination and opinion that adequately addresses the severity of the Veteran's lumbar spine disability throughout the period on appeal. 

The November 2015 rating decision does not reflect consideration of any VA examination. The record before the Board reflects that the Veteran was not afforded a VA examination in relation to his lumbar spine until August 2017. The August 2017 VA examiner documented a diagnosis of lumbosacral spine strain. However, an August 2017 VA primary care note records reflect a diagnosis of degeneration of the lumbar vertebrae at least as early as January 2016. 08/22/2017, CAPRI, p. 8. Further, a VA problem list generated by VA medical providers in September 2018 characterizes the Veteran's disability as degeneration of lumbar intervertebral disc. 09/19/2018, CAPRI, p. 1. The Veteran has submitted copies of his STRs reflecting a February 1981 physical therapy record documenting "scoliosis convex to left with thoracic kyphosis and possible [mid-thoracic] facet misalignment." 05/05/2016, STR  Medical  Photocopy. 

It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Accordingly, the Board finds that the Veteran should be afforded an adequate VA examination that evaluates the severity of the Veteran's lumbar spine disability throughout the period on appeal, and which reflects consideration of all evidence of record. 

4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 

As discussed above, the Veteran has claimed entitlement to an initial disability rating in excess of 10 percent for his lumbar spine disability. A claim for entitlement to a total disability rating based on individual unemployability (TDIU) is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Lay statements from the Veteran's co-workers received in September 2018, July 2019, and November 2021 reflect that the Veteran has had employment difficulties relating to various disabilities.

In October 2016 the Veteran submitted a TDIU claim form. The information included in the form is unclear. In Section 17A, when prompted to list all employment for the previous 5 years, the Veteran identified that he was employed as a salesperson, working 40 hours a week, for a period of approximately 7 days in October 2016, and that his highest gross earnings per month were $200. However, in section 17G the Veteran indicated that his total earned income over the past 12 months was $19,000 and that his present monthly income was $1,400. 

Further, the Veteran's current employment status is unclear. While he filed for TDIU in October 2016, a November 2021 letter reflects that the Veteran remained actively working, though he intended to resign. 

Finally, the Board finds that evidence developed in the course of adjudicating the Veteran's claim to an increased lumbar spine rating could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. 

Accordingly, the Board concludes that the Veteran's TDIU claim should be remanded to afford the Veteran an opportunity to provide updated employment information. 

The matters are REMANDED for the following action:

1. Request that the Veteran complete and submit a TDIU claim form. 

2. Take all appropriate steps to adjudicate the Veteran's claim for service connection of a right knee disability. 

3. Forward the claims file, including this remand, to the VA medical examiner who provided the September 2019 opinion. If the September 2019 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion.

The examiner is asked to opine as to the following: 

(a.) Whether the Veteran's sleep apnea is at least as likely as not related to an in-service injury, event, or disease, or whether it first had its onset during a period of active service. 

(b.) Whether the Veteran's sleep apnea disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability.

If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of the Veteran's lumbar spine disability for the period from January 26, 2015, onward. 

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sametshaw, Eric C.

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.