Citation Nr: 1139455 Decision Date: 10/25/11 Archive Date: 11/07/11 DOCKET NO. 08-16 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral foot disorders, diagnosed as bunions and hallux valgus. 2. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to November 1989, November 1990 to July 1991, and October 2004 to July 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. For purposes of clarity, the claims for bilateral foot disorders have been combined and are now listed as on the title page of this decision. Moreover, it is noted that the Veteran's initial claim for service connection for bilateral bunions and hallux valgus was denied by the RO in March 2004. The Veteran was notified of the denial in April 2004, and he did not file a timely appeal. The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Therefore, regardless of how the RO developed the claim for bilateral foot disorders as a result of the Veteran's filing to reopen the claim in November 2005, the Board must make its own determination as to whether new and material evidence has been received to reopen the claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened, regardless of the RO's finding. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). FINDINGS OF FACT 1. Evidence received since the March 2004 rating decision which denied service connection for bilateral bunions and hallux valgus includes evidence that relates to an unestablished fact necessary to substantiate the claim of service connection, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 2. Evidence received since the March 2004 rating decision does not include any probative evidence that shows that preexisting moderate bilateral bunions and hallux valgus were aggravated beyond their natural progression during active service. 3. Mild obstructive sleep apnea is of service origin. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral bunions and hallux valgus. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011). 2. Bilateral bunions and hallux valgus were not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2011). 3. With resolution of all reasonable doubt in the Veteran's favor, it is concluded that a chronic sleep disorder, diagnosed as obstructive sleep apnea, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2011). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c) (2011). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim regarding entitlement to service connection for sleep apnea in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. As to the claim of whether new and material evidence has been received to reopen a claim for service connection for bilateral foot disorders, first, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in September 2003, October 2003, December 2005, March 2006, April 2006, and June 2006) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the present case, the Veteran has been notified of the evidence and information necessary to reopen the claim and to establish entitlement to the underlying claim for the benefit sought in the December 2005 VCAA letter mentioned above. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011). Service connection may 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) (2011). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2011). This rule does not mean that any manifestations in service will permit service connection. To show 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 entity is established, there is no requirement of evidentiary showing of continuity. 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) (2011). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. New and Material Evidence - Bilateral Foot Disorders, Diagnosed as Bunions and Hallux Valgus As already noted, the Veteran's initial claim for service connection for bilateral bunions and hallux valgus was denied by the RO in March 2004, and he was informed the following month. The decision became final. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2011). Because the Veteran did not file a timely appeal with respect to the last final rating decision in 2004, it became final. The claim for entitlement to service connection for bilateral foot disorders may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claims for service connection for these conditions in November 2005. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2011). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence before VA at the time of the prior final decision in March 2004, which denied service connection for these conditions, consisted of the Veteran's STRs, and post service private and VA treatment records, dated from 2001 through 2003. These records reflect no report of foot problems until June 2002. At that time, the Veteran was diagnosed with bunions. VA examination and X-ray of the feet in June 2003 corroborated the clinical findings from June 2002. It was noted that hallux valgus was bilateral but worse on the left. The RO found that the competent medical evidence did not support the Veteran's claim. Specifically, it was noted that bunions and hallux valgus were not noted during an active service period. In November 2005 the Veteran applied to reopen his claim for service connection for bilateral foot disorders. With respect to the Veteran's application to reopen his claim for service connection, the Board finds that the evidence received since the last final decision in March 2004, is not cumulative of other evidence of record, relates to unestablished facts, and raises a reasonable possibility of substantiating the claims. Newly received evidence includes additional STRs from the Veteran's final period of active service in 2004 and 2005 and private and VA treatment records dated from 2005 through 2008. Not all of these records are considered new and material. Those which simply continue to reflect a diagnosis of bilateral bunions and hallux valgus (without opinion regarding etiology) simply reiterate the fact that these conditions are present. What the Board finds to be new and material evidence are the STRs which reflect that the Veteran was seen during active service in 2004 and 2005 for bilateral foot complaints. An assessment of bilateral hallux abducto valgus was made in 2004, and the Veteran was given pads. In 2005, he was again noted to have bilateral bunions. He said that he had this condition for two years, but there had been an exacerbation after deployment. These records were, of course, not available at the time of 2004 denial as the initial denial preceded the Veteran's 2004-2005 service treatment for his foot problems. Also considered to be new and material is the July 2007 VA examination report with X-rays of the feet and medical opinion regarding the etiology of the Veteran's foot disorders. Moreover, opinion was provided as to whether preexisting foot disorders were aggravated during the Veteran's active duty service. It is noted that such opinions were not of record at the time of the RO denial of the claim in 2004. The new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims for service connection for the claimed conditions. 38 C.F.R. § 3.303 (2011). New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the claim for bilateral bunions and hallux valgus is reopened. Thus, the Board will now consider whether service connection for these conditions is warranted. Analysis - Service Connection - Foot Disorders The Board determines that the evidence preponderates against the Veteran's claim for service connection for bilateral bunions and hallux valgus. Specifically, as in the previous discussion, while there is a current diagnosis of bilateral bunions and hallux valgus, neither condition was diagnosed during the Veteran's first two periods of active service (which had extended from 1989 through 1991). Specifically, it is noted that these foot disorders were first noted in 2002, before his last period of active duty from October 2004 and July 2005. Thus, it is concluded that these conditions, first noted in 2002, preexisted the last period of active service as there was no report of foot problems of any kind until 2002. Medical opinion was obtained to address whether these preexisting conditions were aggravated during the Veteran's last period of service. At the July 2007 VA exam, the Veteran reported what while he was in service, he had bilateral foot pain with walking and standing. This problem started when he entered service and wore combat boots. He was instructed to stay off his feet. Since discharge, he had been diagnosed with bunions. He wore shoe supports but had little relief. X-rays showed bilateral hallux valgus with mild bilateral foot degenerative joint disease (DJD). The examiner noted that this condition had a severe effect on the claimant's ability to do chores, shop, exercise, play sports or drive. It had a moderate effect on his dressing/grooming. The examiner noted that he reviewed the Veteran's claims file, to include his STRs, and noted the Veteran's inservice treatment for foot problems. He noted that the Veteran said that his condition had improved since discharge. The examiner opined that the Veteran's foot condition was aggravated during active duty as a result of the military shoes, but that the condition was not beyond normal progression. It is concluded that the evidence of record reflects that the Veteran's bilateral bunions and hallux valgus were not incurred during his first two periods of service. These conditions were initially diagnosed in June 2002, prior to his third period of service. While he was seen in 2004 and 2005, during service, for bilateral bunions and foot problems, a VA examiner who specifically reviewed the file and examined the Veteran determined that the Veteran's preexisting foot conditions were aggravated by his boots during service, but not beyond the natural progression (which is required for a grant of service connection based on aggravation). Therefore, service connection for bilateral bunions and hallux valgus is denied. In making these determinations, the Board considered the Veteran's statements as to how his foot disorders were either incurred in service or aggravated by wearing combat boots during service. In view of the medical evidence, however, these statements are simply not convincing that the Veteran has chronic foot disorders of service origin. The Veteran's contentions as to etiology of these conditions have been considered. It is noted that he is competent as a lay person to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, there is no evidence of record that the Veteran or others have specialized medical knowledge to be competent to offer medical opinion as to cause or etiology of the claimed disabilities. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. Service Connection As to the assertion that service connection is warranted for sleep apnea, it is noted that a chronic sleep disorder was initially diagnosed following VA study in October 2006. This was not during a period of active service, but it is noted that the Veteran noted upon a January 2005 post deployment health assessment that he still felt tired after sleeping. This complaint was made during active service, and at the time of VA examination in July 2008, the Veteran gave a history of experiencing fatigue during service, dozing off during the day, and not feeling rested after a night's sleep. His wife noticed that he was snoring during the night and gasping for air. The examiner in 2008 opined that this condition was not of service origin in that he had "no problem with sleep impairment while in service." The Board notes that while a chronic sleep disorder was not diagnosed during a period of active service, there was report of sleep impairment in 2005, while the Veteran was on active service. While the nexus opinion does not support the Veteran's claim, the Board notes that the examiner's rationale as to why sleep apnea, diagnosed in 2006, was not related to service was that the Veteran had no problem with sleep impairment while in service. The Board does not agree. His report of not feeling rested after sleeping does suggest sleep difficulties during service. Resolving all doubt in his favor, it is concluded that his mild obstructive sleep apnea is of service origin. In further discussion, the July 2008 VA examiner's opinion relies primarily on the lack of documentation of the Veteran's sleep apnea in service, or in the postservice period until the 2006 study. But this does not conclusively disprove the Veteran's claims that he experienced the symptoms that were ultimately diagnosed as sleep apnea. Moreover, there is evidence that he did experience sleep problems during service in 2005 which is not adequately addressed by the VA examiner. Indeed, the record does not reflect that, prior to the October 2006 sleep study, that the Veteran was tested for and found not to have sleep apnea, or denied having symptoms consistent with this condition. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (holding that lay evidence cannot be discarded merely because it is unaccompanied by contemporaneous medical evidence). Moreover, the Board finds that the statements of the Veteran at the time of the 2008 examination to be credible lay evidence of his symptomatology, which with respect to his sleep problems, is readily identifiable by a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for obstructive sleep apnea. ORDER As new and material evidence has been received, the claim for service connection for bilateral bunions and hallux valgus is reopened. To that extent only, the appeal is allowed. Service connection for bilateral bunions and hallux valgus is denied. Service connection for obstructive sleep apnea is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs