Citation Nr: 1111996 Decision Date: 03/25/11 Archive Date: 04/06/11 DOCKET NO. 08-04 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for sleep apnea. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1978 to August 1978 and from September 1990 to June 1991. He also has at least 12 years of service in the Illinois Army National Guard. This matter is before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2002, the Veteran filed claims for service connection for right knee and right ankle disabilities; the RO did not develop the claims. In December 2004, the RO denied service connection for sleep apnea. The Veteran filed a timely notice of disagreement, but failed to perfect the claim. See July 2006 Form 21-4138 (the Veteran stated that he wished to reopen the sleep apnea claim and indicated that he had never received a Form 9). Therefore, the December 2004 decision became final. In a December 2006 administrative decision, the RO denied the Veteran's request to reopen his claim for service connection for sleep apnea because he had not submitted any evidence. The RO informed the Veteran that if additional evidence was received by September 2007, it would continue processing the claim. The Veteran submitted additional evidence in March 2007. The RO construed this evidence as a request to reopen the sleep apnea claim. The Board disagrees. The Veteran submitted additional evidence within the time frame set forth by the RO. In July 2007, the RO again declined to reopen the sleep apnea claim. Also in July 2007, the RO declined to reopen the Veteran's claim for service connection for hypertension, and denied service connection for right knee and right ankle sprains. The Veteran perfected his appeal with respect to these issues in February 2008. In correspondence dated August 2009, the Veteran stated that he wished to "initiate a new claim for right knee condition." In an October 2009 letter, the RO informed the Veteran that he could not have a notice of disagreement and a claim to reopen pending at the same time. The RO requested that the Veteran submit a Form 21-4138 if he wished to cancel his notice of disagreement. The Veteran submitted the request form in November 2009, at which time he stated that he wished to cancel the NOD and "submit my claim for service connect disability for right knee sprain and wish to continue my appeal." In a December 2009 letter, the RO informed the Veteran that his November 2009 correspondence was construed simultaneously as a request to withdraw the right knee claim and a request to reopen that claim. The RO declined to reopen the claim in a March 2010 rating decision. The Board disagrees with the RO's characterization of the right knee claim. That claim was already on appeal when the Veteran submitted his October 2009 letter, and the RO's correspondence was unnecessary and confusing. According, the right knee issue has been recharacterized to better reflect the procedural history. In December 2010, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. The issue of entitlement to service connection for dizziness was raised in a March 2007 correspondence, and the issue of whether new and material evidence has been received to establish service connection for left knee and left ankle disabilities was raised in an October 2007 correspondence. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for hypertension, as well as the issues of entitlement to service connection for right knee and right ankle disabilities, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a December 2004 rating decision, the RO denied the claim for service connection for sleep apnea; the Veteran initiated an appeal of the decision, but did not perfect it. 2. Some of the evidence received since December 2004 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, and addresses an unestablished fact; it does not, however, raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the December 2004 rating decision is not material, and the claim of entitlement to service connection for sleep apnea is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). When the claim involves reopening a previously denied claim, the notice must inform the appellant of the grounds for the prior denial and the need for new and material evidence, in addition to addressing the underlying claim on the merits. Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice in September 2006 and March 2007. Additional notice was also provided in the letter that accompanied the July 2007 rating decision. Fully compliant notice was provided in multiple communications, but there is no requirement that notice take place in a single letter or correspondence. A multipart notice suffices so long as the notice affords the claimant understandable information and a meaningful opportunity to participate in the claims process. Mayfield v. Nicholson, 444 F.3d 1328 at 1333 (Fed. Cir. 2006). The notification identified the evidence necessary to reopen and substantiate the claim and the relative duties of VA and the claimant to obtain evidence, and also advised the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection. VA has obtained service treatment records (STRs) from the Veteran's second active duty period and his reserve service, and has afforded the Veteran the opportunity to give testimony before the Board. STRs from the Veteran's first active duty period are not of record; however, these records are not pertinent to this claim as the Veteran does not contend that he developed sleep apnea during that time period. All known and available records relevant to the issue on appeal have been obtained and associated with the claim file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. New and Material Evidence If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary to consider the patently incredible to be credible"). The Veteran seeks to reopen his service connection claim for sleep apnea based on his assertion that he started having trouble sleeping either during or shortly after his deployment to Saudi Arabia during the Gulf War (November 1990 to May 1991). In December 2004, the RO denied service connection for sleep apnea because it determined that there was no link between the Veteran's current sleep apnea and his active duty service from September 1990 to June 1991. The Veteran filed a timely notice of disagreement, but did not perfect the appeal; therefore, the December 2004 rating decision became final. Since the December 2004 decision, the Veteran has submitted VA treatment records dated June 2004 that confirm his sleep apnea diagnosis. He has also submitted statements in support of his claim, essentially repeating his contention that he started having trouble sleeping either during or after his return from the Gulf War. Finally, the Veteran has submitted a March 2007 lay statement from a licensed vocational nurse who reportedly worked with the VA pulmonologist who first treated the Veteran for sleep apnea. In her statement, she wrote that during the Veteran's first visit (which took place in September 2001) "it was annotated that [the Veteran] had been diagnosed with Sleep Disorder and Insomnia in 1997, this was prior to his discharge in 1999. At that time and now we felt that this was a Service-Connected Disability." Emphasis added. Some of this additional pertinent evidence was issued after the December 2007 statement of the case, and such evidence has not yet been reviewed by the RO. However, remand for the issuance of a supplemental statement of the case under 38 C.F.R. §§ 19.31, 20.1304 is not required. None of the evidence received since December 2004 is new and material sufficient to reopen the previously denied claim of service connection for sleep apnea. While the specific allegations regarding the presence of sleep apnea and the Veteran's accompanying statements on that condition are new, they cannot be considered material because they are redundant of information of record at the time of the RO's December 2004 decision. With respect to the lay statement regarding service connection, the nurse based her opinion on an incorrect factual basis regarding the date the Veteran was discharged from active duty service. The Veteran was discharged from his second active duty period in June 1991, not 1999. Her opinion cannot be considered probative of the issue and cannot be new and material evidence. Reonal v. Brown, 5 Vet. App. 458 (1993). In the absence of new and material evidence, the previously denied claim of service connection may not be reopened. There is no doubt to be resolved. ORDER New and material not having been received, the previously denied claim of service connection for sleep apnea is not reopened, and the claim remains denied. REMAND New and Material Claim Further development is needed on the application to reopen the claim of service connection for hypertension. For claims to re-open, VA must notify a claimant of the basis for the prior denial and the evidence and information that is necessary to reopen the claim and establish entitlement to the underlying claim for the benefit sought. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Kent v. Nicholson, 20 Vet. App. 1 (2006). Review of the record indicates that proper notice was not provided. This must be done. Service Connection Claims The Veteran filed claims for service connection for right knee and right ankle disabilities in January 2002; the RO did not develop the claims. Service treatment records show that the Veteran was treated for right knee and right ankle pain in April 1991, during his deployment to Saudi Arabia. He claimed that he had slipped on a rock and twisted his ankle in February 1991, and had reinjured the ankle four days before. He also complained of right knee pain when lifting or squatting. There was mild lateral tenderness in the knee, but no swelling. There was negative anterior drawer testing and full range of motion. The diagnosis was right ankle sprain and right knee arthritis. The May 1991 separation examination included a normal clinical evaluation of the lower extremities. On the first page of the report, the clinician noted that the Veteran had injured his left ankle in February 1991, but stated that range of motion was fine. On the second page of the report, the clinician noted that the Veteran was "still having intermittent problems" but that the left ankle was getting better. He recommended an orthopedic evaluation "as needed." On the accompanying medical history report, the clinician noted that the Veteran reported recurring pain in his ankle. The clinician's reference to the left ankle appears to be a typographical error, as the STRs clearly establish that the Veteran injured his right ankle in February 1991. A January 1993 VA treatment record shows that the Veteran reported that his right knee sometimes gave out on him. He reportedly hit the knee against a vehicle door during Desert Storm. There was no swelling. X-rays showed degenerative arthritis. The clinician prescribed Tylenol and Ibuprofen as needed. VA treatment records dated October 1999 to July 2001 reflect that the Veteran participated in a VA Antibiotic Treatment Study. The purpose of the study was to determine whether treatment with an antibiotic would benefit Veterans with Gulf War Veterans' Illnesses. Records reflect that the Veteran tested positive for mycoplasma infection. Throughout the study, he complained of multiple joint pains, to include his right knee and right ankle. He also reported intermittent swelling of both his knee and ankle. In February 2001, the Veteran was treated for pain and stiffness in his knees and ankles. He complained of ankle pain "for years" that had progressively gotten worse. The diagnosis was undefined joint disease, "rule out fibromyalgia vs. hypothyroid vs. metabolic cause." In March 2001, the Veteran was diagnosed with osteoarthritis in the right knee and migratory joint pain. There is reference to an April 2001 ankle X-ray that was within normal limits, although it is not clear which ankle was radiographed. In May 2001, he was diagnosed with seronegative polyarthritis. In September 2001, the Veteran was diagnosed with spondyloarthropathy and inflammatory polyarthritis that "currently appears quiet." Later that month, he reported arthralgias and swelling in his knees and ankles since 1994. The pain had progressively worsened since that time. The impression was arthraligias, etiology unclear. It was recommended that the Veteran follow up with the rheumatology clinic. A December 2002 VA treatment record contains a diagnosis of palindromic rheumatism. In February 2003, there was crepitus in the Veteran's knees. In September 2005, the Veteran reported a history of swelling in his right ankle and right knee ever since he twisted the right ankle while in Saudi Arabia and hit his knee while trying to get into a vehicle. He complained of current right knee and right ankle pain. There was slight edema to the ankle, which the clinician noted was "most likely" due to the Veteran's hypertension medication. A May 2007 VA joints examination report shows that the Veteran reported flare-ups of sharp knee pain, severe in intensity, involving the anterior infrapatellar region, particularly when trying to get up or following prolonged standing. He also reported swelling of the knee, although the last time he had swelling had been the previous year. He also reported recurrent right ankle pain with flare-ups of soreness, severe in intensity involving the medial aspect of the ankle. X-rays of the right knee showed irregularity or calcification adjacent to the lateral intercondylar tibia. X-rays of the right ankle suggested an old healed fracture of the distal right fibula. The examiner reviewed the claim file and noted that a right knee/right ankle sprain was documented in April 1991. The diagnosis was history of right knee sprain and history of right ankle sprain, no residual functional impairment. The examiner, noting that he had conducted a "careful review" of the claim file, opined that the right knee and right ankle conditions were "less likely than not" associated with the knee or ankle sprains during service. He also determined that there was no chronic disability in either the knee or the ankle. The claim file does not sufficiently establish the presence of a currently diagnosed, service connectable condition since the Veteran filed his March 2007 claim. The Veteran describes only symptoms of pain; pain alone is not a service connectable disability. However, the Veteran was diagnosed with degenerative arthritis of the right knee approximately 18 months after his June 1991 active duty discharge. He was diagnosed with palindromic rheumatism in December 2002, just 11 months after he filed his January 2002 claims for service connection. Furthermore, VA treatment records contain multiple diagnoses of arthritis and polyarthritis between February and September 2001. The May 2007 VA examiner did not discuss any of these findings. Another VA examination is required to identify any disabilities of the right ankle and right knee since January 2001. In addition, there are treatment records that need to be obtained. The Veteran was reportedly treated for arthritis at the Joliet, Illinois Outpatient Clinic arthritis clinic in April 2001. It appears that the RO did not request those records. Also, a review of the claim file shows that the Veteran was diagnosed with "unspecified internal derangement of knee" in November 2007 at the El Paso VAHCS. The record contains records from the El Paso VAHCS from December 2003 to December 2006, and from November 2008 to January 2010. All VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, all the Veteran's VA treatment records should be obtained and associated with the claim file. Accordingly, the case is REMANDED for the following action: 1. Review the claim file and provide all required notification for his request to reopen the hypertension claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. Obtain outstanding VA treatment records from the VAHCS in El Paso, Texas from January to December 1997, and from the Joliet, Illinois Outpatient Clinic from July 1991 to December 2002. 3. Schedule the Veteran for a VA joints examination. The examination report should include a detailed account of all right knee and right ankle pathology found to be present. All necessary tests and X-rays should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is to review the evidence of record with attention to the service treatment records dated April and May 1991, as well as the May 1991 separation examination. The examiner should assume that any reference in the May 1991 separation examination to the Veteran's left ankle is a typographical error and that the clinician was actually referring to the Veteran's right ankle. The examiner should indicate: (a) The diagnoses of any right knee and right ankle disabilities present since January 2001, to include arthritis of any specific joint. (b) Whether it is as least as likely as not (50 percent or greater probability) that any current right knee disability is the result of the Veteran's active military service. (c) Whether it is as least as likely as not (50 percent or greater probability) that any current right ankle disability is the result of the Veteran's active military service. The report of examination must include a complete rationale for all opinions expressed. The entire claim folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Then, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ DAVID HAVELKA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs