Citation Nr: 18154155
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-54 224
DATE:	November 29, 2018
ISSUES
1. Whether new and material evidence has been submitted to reopen the claim for service connection for hypertension, claimed as high blood pressure.
2. Entitlement to service connection for hypertension, claimed as high blood pressure.
3. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression.
4. Entitlement to service connection for sleep apnea, as secondary to depression.
5. Entitlement to service connection for hyperlipidemia, claimed as high cholesterol.
6. Evaluation of degenerative changes, left knee, currently evaluated as 10 percent disabling.
7. Evaluation of residuals, anterior cruciate ligament repair, left knee, currently evaluated as 10 percent disabling.
8. Entitlement to an effective date earlier than June 1, 1999 for the grant of service connection for residuals, anterior cruciate ligament repair, left knee.
9. Entitlement to an effective date earlier than June 1, 1999 for the grant of service connection for degenerative changes left knee.
10. Entitlement to service connection for a left shoulder disability.
11. Entitlement to service connection for a heart disability.
12. Entitlement to service connection for diabetes mellitus.
13. Entitlement to service connection for headaches.
14. Entitlement to a total disability rating based on individual unemployability (TDIU).
ORDER
New and material evidence sufficient to reopen the claim of service connection for hypertension, claimed as high blood pressure has been received, and to that extent only, the claim is granted.
Entitlement to service connection for hypertension, claimed as high blood pressure is denied.
Entitlement to service connection for depression is granted.
Entitlement to service connection for sleep apnea, as secondary to depression is granted.
Entitlement to service connection for hyperlipidemia, claimed as high cholesterol is denied.
Evaluation of residuals, anterior cruciate ligament repair, left knee, currently evaluated as 10 percent disabling is denied.
Evaluation of degenerative changes, left knee, currently evaluated as 10 percent disabling is denied.
Entitlement to an effective date earlier than June 1, 1999 for the grant of service connection for residuals, anterior cruciate ligament repair, left knee is denied.
Entitlement to an effective date earlier than June 1, 1999 for the grant of service connection for degenerative changes left knee is denied.
REMANDED
Entitlement to service connection for a left shoulder disability is remanded.
Entitlement to service connection for a heart disability is remanded.
Entitlement to service connection for diabetes mellitus is remanded.
Entitlement to service connection for headaches is remanded
Entitlement to a TDIU is remanded.
FINDINGS OF FACT
1.  A June 2000 rating decision denied service connection for hypertension.  The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year.  That decision became final.
2.  The evidence associated with the record since the June 2000 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a hypertension, claimed as high blood pressure.
3.  Hypertension was not manifest in service or within one year of separation, and is not otherwise attributable to service.
4.  The Veteran has depression.
5. Depression is attributable to service.
6.  The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s sleep apnea was proximately due to service-connected depression, and not due to the natural progress of the disease.
7.  Hyperlipidemia, also known as high cholesterol, is a laboratory finding, rather than a disability due to disease or injury for which VA compensation is available.
8.  Evaluation of degenerative changes, left knee, is manifested by pain on motion with degenerative arthritis as shown by x-ray evidence; however, range of motion has not been limited in flexion to 30 degrees or less at any time during the appeal period.  
9.  Residuals, anterior cruciate ligament repair, left knee, is manifested by slight recurrent subluxation and lateral instability of the left knee, with a history of recurrent effusion, and no moderate impairment.
10.  A June 2000 rating decision granted a 10 percent evaluation for residuals, anterior cruciate ligament repair, left knee, and 10 percent for degenerative changes, left knee.  The grants were effective June 1, 1999, the day following discharge from service.  The Veteran did not express disagreement or submit new and material evidence within one year and the decision is final.
11.  In the May 2015 Notice of Disagreement (NOD), the Veteran challenged the effective date of the 10 percent ratings for residuals, anterior cruciate ligament repair, left knee, and for degenerative changes, left knee.  This challenge to the effective date was made by way of a “freestanding” claim.  There has been no allegation of clear and unmistakable error (CUE).
CONCLUSIONS OF LAW
1.  New and material evidence sufficient to reopen the claim of service connection for hypertension, claimed as high blood pressure, has been received.  38 U.S.C.  § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).
2.  Hypertension was not incurred in or aggravated by service, and cardiovascular-renal disease may not be presumed to have been incurred therein.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).
3.  Depression was incurred in service.  38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
4.  Resolving reasonable doubt in the Veteran ’s favor, sleep apnea was aggravated by service-connected depression.  38 U.S.C. §§ 1110, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.310 (2017).
5.  A disability manifested by high cholesterol was not incurred or aggravated by service.  38 U.S.C. §§ 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
6.  The criteria for a disability rating in excess of 10 percent for residuals, anterior cruciate ligament repair, left knee, have not been met or approximated.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.59, 4.7, 4.71, Table II, 4.71a, Diagnostic Code 5010-5260 (2017).
7.  The criteria for a disability rating in excess of 10 percent for degenerative changes, left knee, have not been met or approximated.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.59, 4.7, 4.71, Table II, 4.71a, Diagnostic Code 5257 (2017).
8.  The claim for an effective date earlier than June 1, 1999 for the grant of service connection for residuals, anterior cruciate ligament repair, left knee is denied.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).  38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. §§ 20.200, 20.201; Rudd v. Nicholson, 20 Vet. App. 296 (2006).
9.  The claim for an effective date earlier than June 1, 1999 for the grant of service connection for degenerative changes, left knee is denied.  38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. §§ 20.200, 20.201; Rudd v. Nicholson, 20 Vet. App. 296 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from February 1983 to March 1989, and from May 1989 to May 1999.
This matter is before the Board of Veterans Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.   
In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record.  The Board has recharacterized the appeal as encompassing the issue on the title page.
The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  Here, in light of the private medical opinions regarding the Veteran’s symptoms of major depressive disorder (MDD) and discussion of the impact on his employment picture, the claim for a TDIU has been raised by the record.  This is discussed further in the Remand section below.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017).
In a letter and wavier dated May 15, 2018, the Veteran through his attorney waived RO review of additional evidence, and requested a decision from the Board.
The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).
The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Service Connection
To establish service connection a Veteran must generally show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.”  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.”  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R.  § 3.303 (b).  
Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310 (a).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310 (b).
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements.  Id.  The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.  Id.  Further, a negative inference may be drawn from the absence of complaints for an extended period.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

1. Whether new and material evidence has been submitted to reopen the claim for service connection for hypertension, claimed as high blood pressure
Service connection for hypertension was denied in a June 2000 rating decision.  The Veteran was informed of the decision and of the right to appeal.  He did not appeal or submit new and material evidence within one year of notification.  That decision is final.  
At the time of the June 2000 rating decision, the record included the claims, VA treatment records, June 1999 VA examinations, and the service records.  There was no accepted evidence of disability in service or post service.  There was no evidence of a nexus to service.  
However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  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). 
The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.”  See id. 
Upon the receipt of the Veteran ’s claim for service connection for high blood pressure in June 2014, the issue was revisited in a December 2014 rating decision.   The additional evidence presented includes VA treatment records from June 2006 showing a history of diagnostic impressions of hypertension.  The evidence establishes that the Veteran has hypertension.  As a lack of evidence supporting the presence of disability was one of the bases for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156.
In light of this new and material evidence, the Veteran’s claim of service connection for hypertension, claimed as high blood pressure, is reopened.

2. Entitlement to service connection for hypertension, claimed as high blood pressure
The Board incorporates its discussion from the sections above by reference.
In this case, hypertension is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, 38 C.F.R. § 3.303 (b) applies.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 
As a threshold matter, VA treatment records show impressions of and ongoing treatment for “essential hypertension.”  Thus, the Board accepts he currently has a hypertension disability.
However, there is no indication of hypertension during service or manifesting to a compensable degree within one year of separation.  His Service Treatment Records (STRs) were unremarkable for complaints, treatment or diagnoses of hypertension during service.  The Veteran’s STRs include a January 1999 Report of Medical Examination from separation.  It disclosed a clinically normal evaluation of the vascular system and heart.  In the related January 1999 Report of Medical History, the Veteran  indicated “don’t know” for high or low blood pressure.  He denied heart trouble.
A June 1999 VA General Medical Examination found that the Veteran had intermittent borderline blood pressure.  His wife is a nurse and had followed his blood pressure.  She put him on a diet and this seemed to control his blood pressure, but he was at a “high normal.”  
Years later, the Veteran filed his claim to for service connection for hypertension, claimed as high blood pressure, in June 2014.  
Next, the Veteran was sent an October 22, 2014 letter from VA informing him of the requirements for new and material evidence concerning the previously denied claim of service connection for high blood pressure.  He was informed of the critical evidentiary defects that must be cured in order to prevail.  The Veteran did not directly reply.
The Veteran filed a timely Notice of Disagreement (NOD) in March 2015.  
A VA Primary Care Note from May 21, 2015 shows, “The patient’s blood pressure is usually adequately controlled.  No medication changes are indicated at this time.”  A VA Mental Health Outpatient Note from July 8, 2015 shows, “Medical history includes CRBG 3 years ego. Diabetes. Hypertension, Hypercholesterol. Acid reflux. Previous history of weight issue.”  A VA Primary Care Note from February 16, 2016 shows, “The contribution of dietary sodium to elevated blood pressure was reviewed.  The patient was counseled to limit sodium intake to no more than 2.4g of sodium or 6g of sodium chloride.”  Additional contemporaneous VA treatment records are substantially the same, and show impressions of and medication for hypertension.
The Veteran perfected his appeal in October 2016.
The Veteran through his attorney contends that he is entitled to service connection for hypertension, claimed as high blood pressure.
Here, the most probative evidence is the contemporaneous treatment records, including the STRs and VA treatment records, and the findings of the June 1999 VA examination showing that hypertension was not incurred in service.  The most probative evidence shows that hypertension manifest many years after discharge.  The Veteran’s January 1999 separation examination disclosed a clinically normal vascular system and heart.  The record establishes that hypertension was not “noted” during service or within one year of separation.  Furthermore, he did not have characteristic manifestations sufficient to identify any disease entity during that time frame. 
Additional causal evidence against the claims, and while not dispositive, is the lapse of so many years between discharge and the first documented medical evidence of hypertension.  This multi-year gap after service provides highly probative evidence against these claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that “evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran’s health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service”). 
The most probative evidence establishes a remote onset of acquired pathology and the Veteran’s own opinion warrants less probative value (regarding identifying a potential chronic disease entity) when compared with the objective evidence of record.  The evidence of record fails to establish that the current claimed and remote condition may be related in any way to service.  There was no continuity of symptoms from service to the present.  We note other factors as referenced in the VA treatment records.  Therefore, service connection for hypertension is not warranted.
In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim.  As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

3. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression
The Board incorporates its discussion from the sections above by reference.
The Veteran’s Service Treatment Records (STRs) include a January 1999 Report of Medical Examination from separation.  It disclosed a clinically normal psychiatric evaluation.  However, in the January 28, 1999 Report of Medical History from separation, the Veteran endorsed “frequent trouble sleeping.”  A related written note at the end of the examination shows that the Veteran experienced trouble sleeping for five years.  The note also shows that he was on no medication.  
Next, the June 24, 1999 VA General Medical Examination shows that his wife reported that the Veteran had difficulty sleeping.  She is a nurse.
Ongoing VA treatment records show impressions of and treatment for generalized anxiety disorder, depression, and insomnia.  They also show reports of related occupational difficulty.
A December 6, 2016 Buddy statement shows that the Veteran was stressed and angry during service.  He was isolative and resistant to being around others.  Other times, he was angry and once put his hands on another shipmate.
A Mental Disorders Disability Benefits Questionnaire (DBQ) signed in May 2017 shows a diagnostic impression of major depressive disorder, recurrent moderate.  The Veteran endorsed several significant symptoms, including suicidal ideation, and states this impacts his mood by causing “low energy, low motivation, social isolation/withdrawal (has “only one friend”), fatigue, irritability, loss of interest in activities/hobbies he once enjoyed and feels hopeless and helpless that he won’t see improvements in his medical situations.”  Dr. H.-G. interviewed the Veteran after reviewing the claims file.  Dr. H.-G. provided a medical opinion.  Dr. H.-G. based her opinion on journal articles.  Dr. H.-G. concluded, “it is the belief of this examiner, based on interview and the C-File that Mr. [Veteran ] suffers from major depressive disorder more likely than [not] began in military service, continues uninterrupted to the present, and is aggravated by his degenerative changes left knee, lumbosacral strain with lipping, tendonitis right shoulder, residuals anterior cruciate ligament repair left knee and maxillary sinusitis.  Furthermore, it prevents him from sustaining substantially gainful employment.”  
The Veteran through his attorney submitted a May 15, 2018 Brief in Response to 90 Day Letter.  The Brief outlines the evidence in support of the Veteran’s claim for service connection for depression, sleep apnea, and headaches.  It explains his theories of entitlement.  This evidence highlighted has been considered.
The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report nightmares, anxiety, and feeling angry.  
The Veteran is competent to relate what he has been told by a professional.  He is competent to report when he began receiving treatment for depression, anxiety, and insomnia, and when they were first identified by treatment providers.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran’s wife is competent, particularly as a nurse, to report observing his difficulty sleeping.
The most probative evidence is the contemporaneous VA treatment records and the May 2017 Mental Disorders DBQ with private medical opinion.  VA treatment records show ongoing impressions of and treatment for depression.  The May 2017 opinion from Dr. H.-G. shows a positive nexus opinion to service.  The Board assigns substantial probative weight to the findings of the May 2017 private examiner. 
We have also considered the STRs. To the extent that the STRs show reported symptoms of difficulty sleeping but no diagnosis of depression until after discharge, we have considered this.  Supplementing any lack of formal diagnosis during service is the December 6, 2016 Buddy statement.  It shows that the Veteran was stressed and angry during service.  
In short, the most probative evidence is the Veteran’s lay reported symptoms, the contemporaneous VA treatment records, and the findings of the May 2017 DBQ with medical opinion.  In diagnosing depression, the examiner considered the Veteran’s lay history and symptoms, and provided detailed reasons and bases.  The most probative evidence of record shows that depression is attributable to service.  There is no doubt to resolve.  Consequently, service connection for depression is warranted.

4. Entitlement to service connection for sleep apnea, as secondary to depression
The Board incorporates its discussion from the sections above by reference.
The Veteran’s Service Treatment Records (STRs) include a January 1999 Report of Medical Examination from separation.  It disclosed a clinically normal evaluation of the sinuses, nose, head, face, neck, and scalp, and lungs and chest.  As noted in the section above, in the January 28, 1999 Report of Medical History from separation, the Veteran endorsed “frequent trouble sleeping.”  
As a threshold procedural matter, a June 2000 rating decision denied service connection for “sleeplessness.”  VA informed the Veteran that sleeplessness is not a disability for VA purposes.  That decision became final.  This appeal is for a new, distinct claim for service connection for sleep apnea, and the Veteran appears to assert this under a secondary service connection theory of entitlement.  See, e.g., May 2018 Brief.  We have proceeded accordingly, and there has been no prejudice to the Veteran.
A VA treatment record from March 31, 2016 shows that VA identified sleep apnea via a sleep study.  The reason for the study was that the Veteran reported snoring, witness apneas, non-refreshing sleep, and nocturia.  Ongoing VA treatment records show impressions of and treatment for sleep apnea.  They show that the Veteran was prescribed a continuous positive airway pressure (CPAP) machine.  The Veteran used it nightly, and VA treatment records generally show some improvement in sleep quality associated with notations of using this device.
The Veteran through counsel submitted a September 2017 Sleep Apnea Disability Benefits Questionnaire (DBQ) along with a private medical opinion from Dr. H. S.  It shows that the Veteran reported a several-year history of poor sleeping including insomnia, loud snoring, difficulty staying asleep, irritability, witnessing apneas, and diminished concentration.  It highlighted the March 31, 2016 VA sleep study that identified sleep apnea.  The private physician reviewed the claims file, spoke with the Veteran, and reviewed the VA treatment records.  The private physician opined, “[I]t is my opinion that obstructive sleep apnea is more likely than not caused & permanently aggravated by depression including treatment with Mirtazapine, in addition to chronic pain from his left knee, low, back, & right shoulder.”  
Related to this opinion, a referenced scholarly article published in the journal SLEEP is entitled “Efficacy of Mirtazapine in Obstructive Sleep Apnea Syndrome.”  It shows in part, “Mirtazapine also is associated with sedation and weight gain -  2 negative side effects in patients with OSA.  In view of the above, we do not recommend use of mirtazapine as a treatment for OSA.”  Additional articles are also referenced as part of Dr. H. S.’s September 2017 private medical opinion.
In the May 2018 Brief, the Veteran through counsel highlights the aforementioned evidence, and contends that service connection is warranted based upon, “medical research linking depression with increased rates of obstructive sleep apnea.”   
The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran is competent to report nocturnal awakenings.  
The Veteran is competent to relate what he has been told by a professional.  He is competent to report that it was recommended that he use a CPAP.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran’s wife is competent, particularly as a nurse, to report observing his difficulty sleeping.
The most probative evidence is the contemporaneous treatment records, including the STRs and VA treatment records, and the September 2017 private examination with medical opinion.  The STRs show a lay reported history of complaints of sleep disturbance in service.  They show that the Veteran was not on medications.  Over a decade after discharge, VA formally identified the disease entity via a March 31, 2016 sleep study.  A September 2017 medical nexus opinion linked sleep apnea to depression, including to being prescribed the antidepressant drug Mirtazapine.  Dr. H. S. provided reasons and bases citing to scholarly articles, the claims file, and his interview with the Veteran.  The Board assigns substantial probative weight to these findings.
At the very least, the evidence of record is in relative equipoise as to the nature of the onset of the Veteran’s sleep apnea as secondary to depression.  Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection on a secondary basis is warranted for the Veteran’s sleep apnea.  The Veteran suffers from a current disability that is caused by the Veteran’s service connected depression.  38 C.F.R. § 3.310.  The Veteran has been afforded the benefit of the doubt.  See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017).  

5. Entitlement to service connection for hyperlipidemia, claimed as high cholesterol
The Board incorporates its discussion from the sections above by reference.
The STRs include a January 1999 Report of Medical Examination from separation.  It disclosed a clinically normal evaluation of the G-U system, endocrine system, abdomen, and viscera. 
The Board observes that high cholesterol is not a service-connectable disability entity.  The term “disability,” as used for VA purposes, refers to a condition resulting in an impairment of earning capacity.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Consequently, although the Veteran has been noted to have high cholesterol, this condition is not a disability for which VA compensation benefits are payable.  61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (“Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities.  They are, therefore, not appropriate entities for the rating schedule.”)  While high cholesterol may be evidence of underlying disability or may later cause disability, service connection may not be granted for a laboratory finding alone. 
In this case, there is no evidence that the Veteran’s high cholesterol has caused any impairment of earning capacity or is a manifestation of other disease or injury for which service connection may be granted at this time.  To the extent the Veteran contends he has impairment from his time in service, it would not be subject to compensation because it is still not a disease or injury within the law providing for compensation.  38 U.S.C. § 1131.  There is also no need to address aggravation because the Veteran does not establish that a particular injury or disease resulting in disability was incurred coincident with service.  38 C.F.R.  § 3.303.  As such, a consideration of the presumption of soundness is not applicable.  In the absence of proof of another current disability for which service connection may be granted, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).
Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim.  As such, the benefit of the doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Rating
Residuals, anterior cruciate ligament repair, left knee and degenerative changes, left knee are both currently rated at 10 percent, respectively.  
Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.
Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the disability ratings have not been previously staged.  As discussed below, uniform evaluations are warranted.
When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”).  See 38 C.F.R.  §§ 4.40, 4.45, 4.59.
Further, in claims for higher ratings for musculoskeletal disabilities, where the Veteran has a noncompensable rating and complains of pain on motion, he may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id.
DC 5260 provides ratings based on limitation of flexion of the leg, where flexion limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and, flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a.  Moreover, arthritis due to trauma under DC 5010 substantiated by x-ray findings is rated as degenerative arthritis under DC 5003.  38 C.F.R. § 4.71a, DC 5003.  DC 5003 (arthritis, degenerative) provides that if degenerative arthritis is established by x-rays, then the disability is rated under the appropriate DC for the specific joint limitation of motion.  When the rating of a specific joint is noncompensable under the DCs pertaining to limitation of motion, a rating of 10 percent is for application for involvement of 2 or more major joints or 2 or more minor joint groups affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.
Separate ratings may be assigned for knee disability under DCs 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability.  The symptomatology supporting the evaluations does not overlap; limitation of motion and stability are distinct from each other.  See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98.  Further, VAOPGCPREC 9-04 provides that where a claimant has both limitation of flexion and limitation of extension of the same leg separate ratings under diagnostic codes 5260 and 5261 are warranted to adequately compensate for functional loss associated with injury to the leg.  Thus, evaluations under DC 5257 and either or both DC 5260 and DC 5261 are permissible, as each of the three codes measures different criteria.  By contrast, an evaluation under DC 5003 may not be combined with one under DC 5260 or DC 5261; DC 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion DCs forecloses the possibility of multiple evaluations.  See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14.
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
The Veteran contends that he is entitled to increased evaluations for residuals, anterior cruciate ligament repair, left knee and degenerative changes, left knee, both currently assigned a 10 percent rating.
 
6. Evaluation of degenerative changes, left knee, currently evaluated as 10 percent disabling
The Board incorporates its discussion from the sections above by reference.
Degenerative changes, left knee is assigned a 10 percent rating under DC 5010-5260.  The 10 percent evaluation contemplates arthritis, due to trauma, substantiated by x-ray findings.  In order to have a higher evaluation, there must be evidence of leg flexion limited to 16 to 30 degrees, or extension limited to 15 degrees.
First, the Veteran was afforded a September 2014 VA examination.  The VA examination showed no objective evidence of painful motion in the left knee.  The Veteran reported that flare ups do not impact the lower leg.  There was no objective evidence of painful motion on extension, and extension ended at 0 or any degree of hyper extension, with no limitation of extension indicated.
Next, in February 2017, the Veteran was again afforded a VA examination.  Upon clinical examination, flexion was to 60 degrees.  Pain limited range of motion on flexion.  There was crepitus.  Additional functional loss or range of motion after three repetitions was not documented.  The VA examination shows, “Per patient pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time.  Patient states would have additional limitations in ROM but unable to quantify the degree of ROM loss as it would vary due to severity of pain, weakness, fatigability and overuse.”  An x-ray of the left knee revealed, “Status post anterior cruciate ligament reconstruction with mild tricompartmental degenerative arthrosis. Negative for acute osseous abnormality.”  There is no evidence of ankylosis for DC 5256 to apply.  There is also no evidence of symptomatic removal of semilunar cartilage.  Consequently, DC 5259 does not apply.  
Based on the foregoing, the Board finds that the Veteran’s degenerative changes, left knee manifested with degenerative arthritis, as shown by x-ray evidence; however, his knee has not been limited in flexion to 30 degrees or less at any time during the appeal period.  His range of motion testing during the September 2014 and February 2017 VA examinations did not show that the Veteran’s left knee disability would warrant an evaluation in excess of 10 percent.  The current rating contemplates the Veteran ’s impairment in flexion. 
The Board has considered whether any additional DCs should be assigned to the Veteran’s disability picture.  While VA General Counsel has interpreted that separate ratings may be assigned under DC 5260 and DC 5261 (limitation of extension of the leg) for disability of the same joint where there is both compensable limitation of flexion and extension, the Board notes that the evidence of record does not show limitation of extension of 5 degrees or greater in any medical or lay evidence; thus, a separate rating for limitation of extension is not warranted in this case.  See VAOPGCPREC 9-2004.
Likewise, in addition to amounting to pyramiding, DC 5256 is inapplicable in this case because the medical and lay evidence of record does not show that the Veteran has ankylosis in his knee.  In particular, the September 2014 and February 2017 VA examinations do not show that the Veteran has ankylosis.  Moreover, there is no indication in the claims file that the Veteran is symptomatic due to semilunar cartilage removal (DC 5259), or that dislocated semilunar cartilage in the knees was causing frequent episodes of locking, pain, and effusion in the joint (DC 5258).  Additionally, DC 5262 does not apply in the Veteran’s case as the evidence does not demonstrate impairment of the tibia or fibula, specifically malunion or nonunion.  Likewise, range of motion testing revealed full extension to zero degrees and did not indicate the presence of any objective hyperextension.  As the evidence in the record does not reflect that the Veteran has genu recurvatum, DC 5263 does not apply to his knee disability. 
Lastly, while separate ratings for DC 5260 and 5257 (impairment of the knee due to recurrent subluxation or lateral instability) would not amount to pyramiding, review of the evidence of record indicates that there is no instability or subluxation associated with the Veteran’s left knee.  See VAOPGCPREC 23-97, 9-98.  VA examination reports and the clinical findings from the September 2014 and February 2017 VA examinations establish no instability following thorough medical examinations.  The Board affords substantial probative weight ot the findings of the VA examiners.  
Accordingly, we find that the Veteran’s degenerative changes, left knee does not warrant a rating in excess of 10 percent at any time during the appeal period, as the criteria for a higher rating have been neither met nor approximated.
The Board has considered the benefit of the doubt doctrine.  However, because the preponderance of the evidence is against a finding that a rating greater than 10 percent is warranted, the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107 (b).

7. Evaluation of residuals, anterior cruciate ligament repair, left knee, currently evaluated as 10 percent disabling
The Board incorporates its discussion from the sections above by reference.
Residuals, anterior cruciate ligament repair, left knee is assigned a 10 percent rating.  The 10 percent evaluation contemplates slight recurrent subluxation and lateral instability of the left knee, with a history of recurrent effusion, and no moderate impairment.  In order to have a higher evaluation, there must be moderate subluxation or lateral instability of the knee.
First, the Veteran was afforded a September 2014 VA examination.  There was clinically normal stability, and no history of recurrent patellar subluxation or dislocation.
Next, in February 2017, the Veteran was afforded a VA examination.  The VA examination showed that joint stability was productive of slight recurrent subluxation and slight lateral instability.  There was a noted swelling of the knee twice a week, with a history of recurrent effusion.  There was no history of recurrent patellar dislocation.  
Here, the evaluation for the left knee under the applicable diagnostic codes is discussed below.  The Board has considered the applicability of other diagnostic codes in the schedule and concludes that no other codes apply other than those currently assigned.  Anterior cruciate ligament repair, left knee was manifested by no more than slight subluxation and lateral instability, as demonstrated at the February 2017 VA examination.  Although that shows some worsening, there is no competent and probative evidence of moderate findings with respect to these criteria under the applicable diagnostic code.  As to Diagnostic Code 5257, the medical evidence of record during this time period does not show any objective x-ray evidence of patellar subluxation.  VA treatment records are substantially the same.  There is also no evidence of ankylosis, so DC 5256 does not apply.  There is also no evidence of symptomatic removal of semilunar cartilage, so DC 5259 does not apply.  The currently assigned 10 percent rating contemplates the anterior cruciate ligament repair.  Therefore, we find that at no point during the applicable rating period have the criteria for a rating greater than 10 percent been met or approximated.  
Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims.  As such, the benefit of the doubt rule is not for application, and the claims must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Effective Date
8. Entitlement to an effective date earlier than June 1, 1999 for the grant of service connection for residuals, anterior cruciate ligament repair, left knee.
9. Entitlement to an effective date earlier than June 1, 1999 for the grant of service connection for degenerative changes, left knee
The Board incorporates its discussion from the sections above by reference.
Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 the later.  38 C.F.R. § 3.400. 
Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, 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)(1).  However, the effective date for an increase in disability compensation for a service-connected disability may be the date of a factually ascertainable increase in disability if it occurred within one year of the date of receipt of a claim for an increased rating.  38 C.F.R. § 3.400 (o)(2) (2017). 
A review of the relevant procedural history is instructive.  An June 2000 rating decision assigned an effective date of June 1, 1999, which was the date following the Veteran’s discharge from active duty.  A review of the claims file does not show any claim for service connection made during the Veteran ’s brief two-month break of active service in 1989.  His original disability claim was received within one year of discharge from active duty in 1999.  The Veteran had one year from the date of notification of the rating decision to indicate that he disagreed.  The Veteran did not express disagreement or submit new and material evidence within one year.  The June 2000 rating decision and its June 1, 1999 assigned effective date became final.  38 U.S.C.  § 5110; 38 C.F.R. § 3.400.
Over a decade later, the Veteran filed his current claim for an increased rating for his knees disabilities in June 2014.  He filed his timely Notice of Disagreement (NOD) in May 2015.  In the NOD, he checked the box indicating that he challenged the effective date of the award for both residuals, anterior cruciate ligament repair, left knee and degenerative changes, left knee.  The most recent June 2017 Supplemental Statement of the Case (SSOC) denied entitlement to an earlier effective date.  It emphasized that the original disability claim was received within one year of discharge from active duty in 1999, and that when a claim of service connection is received within one year of discharge from active duty, the effective date is the day after discharge.  
The Board’s inquiry in this case into the proper effective date begins with the question of whether there is a valid basis in the first instance to bring an earlier effective date claim.  In this regard, the U.S. Court of Appeals for Veterans Claims (Court) in its decision in Rudd v. Nicholson, 20 Vet. App. 296 (2006) addressed the matter of the adjudication of claims for an earlier effective date for a VA benefit, where there is of record a prior final RO decision which considered and decided a claim for that identical benefit.  In Rudd, the Court held that where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final RO rating decision, absent an attempt to vitiate the finality of that decision through an allegation of clear and unmistakable error in the decision, the claimant has merely raised a “freestanding” claim that cannot remove the finality of the decision which assigned the previous effective date. 
In the instant case, the Rudd decision precludes the Veteran from raising a “freestanding” earlier effective date claim regarding a now final RO rating decision.  The earlier prior decision was final and there was no objective evidence of worsened disability.  Here, the Veteran and his attorney have not specifically alleged clear and unmistakable error (CUE) in a rating decision.  The Board finds that it is unable to grant an earlier effective date for the Veteran’s increased evaluation for residuals, anterior cruciate ligament repair, left knee and degenerative changes, left knee because the June 2000 rating decision is final.  
Based upon the governing law regarding the assignment of effective dates, the Board is constrained to find that the Veteran’s claim for an earlier effective date is precluded as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims.  As such, the benefit of the doubt rule is not for application, and the claims must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
1. Entitlement to service connection for a left shoulder disability is remanded.
2. Entitlement to service connection for a heart disability is remanded.
3. Entitlement to service connection for diabetes mellitus is remanded.
The Board incorporates its discussion from the sections above by reference.
A remand is necessary to additional development.  VA treatment records contain evidence of left shoulder disability, heart disease, and diabetes mellitus, but there are no related nexus opinions of record.
As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim.  An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant’s active service; but does not contain sufficient medical evidence for VA to make a decision on the claim.  Given the Veteran’s contentions and the record evidence of disability, the Board finds that VA examinations are warranted.  38 U.S.C § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

4. Entitlement to service connection for headaches is remanded.
The Board incorporates its discussion from the sections above by reference.
By way of background, a review of the Veteran’s service treatment records (STRs) reveals a pre-existing endorsement of frequent or severe headaches in the March 23, 1979 Report of Medical History.  In the January 28, 1999 Report of Medical History, the Veteran denied frequent or severe headaches.
Years after discharge, a May 21, 2015 VA Primary Care Note shows, “Neurological: denies any headaches or dizziness, no seizures.”  
Next, the Veteran through counsel also submitted a September 2017 private Headaches Disability Benefits Questionnaire (DBQ) with medical opinion from Dr. H. S.  The Veteran reported prostrating headaches in conjunction with stress, fatigue, and poor sleep.  He reported experiencing headaches every day and must lie down in the dark.  Dr. H. S. cited a March 2003 article from the European Journal of Neurology that assessed depression and anxiety disorders, and their associated with migraine and non-migraine headaches.  He cited additional medical literature.  Dr. H. S. ultimately opined, “[I]t is my expert opinion that Mr. [Veteran’s] headaches are at least as likely as not caused and permanently aggravated by psychological distress and obstructive sleep apnea.  The impairments of veteran ’s headaches have been present in the current severity sine at least the time the Veteran submitted his current claim for benefits on 6/20/2014.” 
The Board observes that the Veteran’s May 2018 Brief implicitly concedes that headaches were noted upon entry, although under the heading for “Depression.”  The Veteran through counsel concluded, “The Veteran may have experienced headaches prior to service but the combination of depression and sleep apnea have aggravated his headaches.”
If a preexisting condition is noted upon entry into service, as in this case, the Veteran can only bring a claim for aggravation of that condition, not for service connection for the condition itself.  A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a).  Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation.  38 C.F.R. § 3.306 (b).  The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently.  Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002).
In a claim for aggravation of a preexisting condition, the Veteran has the burden to show aggravation with evidence of symptomatic manifestations of the condition during service.  If the presumption of aggravation arises, the burden shifts to VA to establish a lack of aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 
In deciding a claim based on aggravation, after the presence of a preexisting condition has been established, the Board must determine (1) whether there has been any measured worsening of the condition during service, and (2) whether this constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993).
Given the evidence of record, the Board finds that headaches preexisted service, and that the presumption of aggravation applies.  Consequently, the Board must undertake additional development to determine whether there was an increase in disability during service.
The Board observes that the September 2017 medical opinion does not directly address the fact that headaches were noted upon entry, though it is not entirely inconsistent with this in that it cites the Veteran’s lay reported “several-year history of migraine headaches.”  Second, the presumption of aggravation is not addressed in the September 2017 headaches DBQ and private medical opinion.  Moreover, it follows that the STRs were not fully considered in that they show that headaches pre-existed service.  
In order to fully develop the claim, a VA examination is necessary.  38 U.S.C § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Therefore, on remand, a supplemental VA medical opinion addressing the presumption of aggravation should be obtained.

5. Entitlement to a TDIU is remanded.
The Board incorporates its discussion from the sections above by reference.
Additional outstanding documentation is also highly relevant to the issue of entitlement to a TDIU, notably given the Veteran’s ongoing contentions regarding the severity of his disabilities, particularly MDD, as directly affecting his employability.  On remand, the Veteran will have an attempt to submit evidence including a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability to fully develop this claim.  
Additionally, the Board observes that the May 2017 private Mental Disorders Disability Benefits Questionnaire (DBQ) shows that the Veteran reported that he receives Social Security Disability benefits “for his difficulties.”  However, Social Security Administration (SSA) records have not been previously requested or associated with the claims file.  As these records may be directly relevant to the issues before the Board, on remand, any determination pertinent to the appellant’s claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained.  See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA).  The Board notes that in deciding the issue related to depression above in favor of the Veteran, there has been no prejudice to him even though these records were not associated with the claims file at the time of our Decision granting benefits.
Consideration of entitlement to TDIU is also dependent upon the impact of service-connected disabilities on a Veteran’s ability to obtain or retain substantially gainful employment.  The matter of TDIU is therefore inextricably intertwined with the service connection claims undergoing additional development. Harris v. Derwinski, 1 Vet. App. 180 (1991).  Consequently, a remand is warranted.
The matters are REMANDED for the following action:
1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder.
2. Send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Verification, to be fully completed and returned to VA.  
The Veteran should also submit copies of any leave and earnings statements attached to these documents.
3. Request that the Social Security Administration (SSA) provide copies of any records pertaining to the Veteran’s application for SSA disability benefits, to include any medical records obtained in connection with the application.  Any materials obtained should be associated with the Veteran’s VA claims folder.
4. Please schedule the Veteran for a VA examination to determine the nature and etiology of any left shoulder disability.  The claims file should be made available to the VA examiner.  
For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service.
Second, the examiner should also comment on the Veteran’s ability to function in an occupational environment, and describe the functional impairment caused solely by the service-connected disability or disabilities.
The examiner should provide a rationale for all opinions expressed.
5. Please schedule the Veteran for a VA examination to determine the nature and etiology of any heart disability.  The claims file should be made available to the VA examiner.  
For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service.
Second, the examiner should also comment on the Veteran’s ability to function in an occupational environment, and describe the functional impairment caused solely by the service-connected disability or disabilities.
The examiner should provide a rationale for all opinions expressed.
6. Please schedule the Veteran for a VA examination to determine the nature and etiology of any diabetes mellitus.  The claims file should be made available to the VA examiner.  
For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service.
Second, the examiner should also comment on the Veteran’s ability to function in an occupational environment, and describe the functional impairment caused solely by the service-connected disability or disabilities.
The examiner should provide a rationale for all opinions expressed.
7. Please schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headaches.  The VA examiner must review the entire claims file.  The examiner must opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress.  
Attention is directed to the STRs showing a report of headaches upon entry.  See March 23, 1979 Report of Medical History.  Attention is also directed to the Veteran and his attorney’s historical description of his symptoms advanced in the May 15, 2018 Brief in Response to 90 Day Letter.  
A complete rationale should be provided for all opinions expressed.
8. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority.  If any benefits sought are not granted, issue the Veteran and his attorney an appropriate supplemental statement of the case (SSOC).

 
Michael Pappas
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.