Citation Nr: 22019481 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-54 534 DATE: April 1, 2022 ORDER Entitlement to an effective date earlier than July 9, 2015, for the grant of service connection for esophageal cancer is denied. Entitlement to an effective date earlier than July 9, 2015, for the grant of service connection for esophageal cancer residuals, including dysphagia, is denied Entitlement to an effective date earlier than July 9, 2015, for the grant of service connection for surgical scar due to esophageal cancer is denied. REMANDED Entitlement to a rating greater than 10 percent for residuals of esophageal cancer, to include dysphagia, is remanded. Entitlement to a rating greater than 10 percent for blistering, pruritic skin condition (skin disability) is remanded. Entitlement to service connection for a sleep impairment is remanded. FINDINGS OF FACT 1. In an April 2013 rating decision, the RO denied service connection for esophageal cancer. The Veteran did not appeal that decision and it became final. 2. No communication was received from the Veteran prior to July 9, 2015, that may be construed as a formal or informal claim for entitlement to service connection for esophagus cancer, and residuals, to include dysphagia and surgical scar. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier July 9, 2015, for the grant of entitlement to service connection for esophageal cancer not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 2. The criteria for entitlement to an effective date earlier July 9, 2015, for the grant of entitlement to service connection for esophageal cancer residuals, including dysphagia not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 3. The criteria for entitlement to an effective date earlier July 9, 2015, for the grant of entitlement to service connection for surgical scar due to esophageal cancer not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1987 to June 1991. This matter is before the Board of Veterans' Appeal (Board) on appeal from an August 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran and his attorney contend that suffers from a sleep impairment that is residual of his esophageal cancer. In Bailey v. Wilkie, the Court held that the Board is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for an increased rating for the primary service-connected disability. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). Considering the Court's decision in Bailey, the Board will also adjudicate the claim of service connection for a sleep impairment secondary to the Veteran's esophageal cancer. Effective Date 1. Entitlement to an effective date earlier than July 9, 2015, for the grant of service connection for esophageal cancer. 2. Entitlement to an effective date earlier than July 9, 2015, for the grant of service connection for esophageal cancer residuals, including dysphagia. 3. Entitlement to an effective date earlier than July 9, 2015, for the grant of service connection for surgical scar due to esophageal cancer. On February 3, 2011, the Veteran filed his original claim seeking, in pertinent part, entitlement to service connection for esophageal cancer. In April 2013, the RO issued a rating decision which denied the Veteran's claim. The Veteran timely appealed this decision. This denial of service connection became final, as the Veteran did not initiate an appeal of the RO's rating decision, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. On July 9, 2015, the Veteran filed to reopen his claim seeking entitlement to service connection for esophagus cancer, and any residuals. In November 2015, the RO issued a rating decision which reopened the Veteran's claim based upon the receipt of new and material evidence, and then granted service connection for esophagus cancer, and residuals, to include dysphagia and surgical scar, effective from July 9, 2015. See 38 C.F.R. § 3.156(a). The Veteran timely filed an appeal of this decision seeking an earlier effective date for this award. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). Specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). When new and material evidence is received within the appellate period (within one year of a decision), that decision will not be considered final until that evidence is considered. See 38 C.F.R. § 156(b). The new evidence must also ultimately result in a grant of the benefit sought, then the effective date will be the date of the original claim as though the prior decision had not been rendered, The Veteran contends that an effective date prior to July 9, 2015, is warranted for the award of service connection for esophagus cancer and residuals of esophagus cancer based upon 38 C.F.R. § 3.156(c). Specifically, he argues that new and relevant service department records have been received since the initial adjudication of this claim, and that the claim should have been reconsidered, not reopened, under 38 C.F.R. § 3.156(c). In this case, the Board finds that the April 2013 rating decision that denied the Veteran's claim of service connection for esophageal cancer became final. The Board acknowledges that in November 2014 service treatment records were associated with the record. However, the Board highlights that no records were associated with the record within a year following the April 2013 rating decision. The April 2013 claim was not denied to the lack of evidence of the presence of esophageal cancer in-service, or the contesting the Veteran's exposure to burning oil and chemicals. The understanding of 38 C.F.R. § 3.156(c), requires that the service treatment records be relevantremedy the defect of the April 2013 denial, which is not the case in this matter. The Veteran's claims for esophageal cancer and residuals of esophageal cancer were granted in the November 2015 rating decision based on positive VA medical opinions issued in September 2015. See September 2015 VA examination reports. Therefore, finds that the April 2013 rating decision became final, as no service treatment records were received within the appellate period and the new evidence does not result in a grant of the benefit sought. As such, the Board cannot assign an effective date of February 3, 2011, as the April 2013 decision became final. Such an assignment, however, would be contrary to the clearly established and governing law detailed above, which sets the effective date as the date of claim or the date entitlement arose, whichever is later. The currently assigned effective date on July 9, 2015, is, again, the date his claim was received, and based on the application of law to the facts of the case here, is the earliest possible assignable effective date in this case. See 38 C.F.R. §§ 3.102, 3.400. (Continued on next page) REASONS FOR REMAND 1. Entitlement to a rating greater than 10 percent for residuals of esophageal cancer, to include dysphagia, is remanded. 2. Entitlement to a rating greater than 10 percent for blistering, pruritic skin condition (skin disability) is remanded. The Veteran is seeking greater ratings for his service-connected residuals of esophageal cancer and skin condition. The Veteran was last afforded VA examination to determine the severity of his residuals of esophageal cancer and skin condition in August 2015. Since that time, the Veteran and his attorney contend that the August 2015 VA examination reports are not an accurate reflection of the severity of the Veteran's service-connected conditions. See October 2017 Form 9. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given that the Veteran has not been afforded a VA examination to determine the severity of his residuals of esophageal cancer and skin condition since 2915, the Board of Veterans' Appeals (Board) finds that further VA evaluation is needed. 3. Entitlement to service connection for a sleep impairment is remanded. The Veteran and his attorney also contend that he experiences a sleep impairment due to his service-connected esophageal cancer. They assert that the Veteran suffers a sleep impairment equivalent to sleep apnea due to the Veteran's esophagectomy. See October 2017 Form 9. The Veteran reported having to sleep upright due to alleviate the residuals of his esophageal cancer, to include dysphagia. As a result, the Veteran endorsed experiencing chronic daytime hypersomnolence and fatigue, which affect his occupational functioning. To this point, the Veteran has not been afforded a VA examination to determine the etiology of his claimed sleep impairment. Considering the Veteran's reported symptomology and his service-connected disabilities, a VA examination addressing the nature and etiology of the Veteran's claimed sleep impairment is needed. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected skin condition. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with Diagnostic Code 7806. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected dysphagia. The claims folder must be provided to the examiner in conjunction with the examination. All necessary tests and studies should be conducted. The examiner should offer an assessment of all pertinent symptomatology and findings, to be reported in detail in accordance with the appropriate Diagnostic Code. 3. Schedule the Veteran for a VA examination for his claimed sleep impairment. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Provide diagnoses for all current sleep impairment disabilities. (b) State whether it is at least as likely as not that any identified sleep impairment disability is proximately due to service-connected disability esophageal cancer, any residuals to include dysphagia. (c) State whether it is at least as likely as not that any identified sleep impairment disability is aggravated, i.e., worsened beyond its natural progression, by esophageal cancer, any residuals to include dysphagia. The VA examiner should address the Veteran's contention that he has to sleep upright to alleviate the stomach condition symptoms of regurgitation and dysphagia. Provide a rationale to support the opinion(s). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.