Citation Nr: 1602566	
Decision Date: 01/27/16    Archive Date: 02/05/16

DOCKET NO.  12-27 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to a compensable rating for a service-connected right umbilical hernia.

2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left knee disability, and if so whether the reopened claim should be granted.

3. Entitlement to service connection for a right knee disability.

4. Entitlement to service connection for a sleep disorder, to include sleep apnea.


REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Kardian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to June 1991. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2009 and November 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2015. A transcript of the hearing is associated with the claims files.

The Veteran submitted additional evidence in support of his claim after the September 2015 hearing, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2015).

The Board has reviewed the electronic records maintained in both Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issues of a compensable rating for a service-connected right umbilical hernia, and service connection for a left knee disability and a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. A March 2004 Board decision denied the Veteran's claim of service connection for a left knee disability, and was not appealed. 

2. The evidence associated with the claims file subsequent to the March 2004 Board decision is not cumulative and redundant of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a left knee disability. 

3. The competent and credible evidence of record is at least in equipoise as to whether the Veteran's sleep apnea is related to his active military service.


CONCLUSIONS OF LAW

1. The March 2004 Board decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2004).

2. New and material evidence sufficient to reopen the claim of service connection for a left knee disability has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a), (c) (2015).

3. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, in light of the fully favorable decision herein, no further discussion of compliance with VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). 

With respect to the Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issues at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

II. New and Material Evidence

Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 

For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18.

In this case, new and material evidence sufficient to reopen the claim of service connection for a left knee disability has been received. The Board issued a decision in March 2004; the Veteran did not appeal the Board's decision which became final.  38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104, 20.1100 (2004). 

The evidence of record in March 2004, consisted of service treatment records, prior rating and Board decisions, and statements from the Veteran. The evidence failed to show an in-service injury or that the Veteran's claimed left knee disability was causally related to his active duty service. Evidence associated since the Board decision includes VA treatment records, VA examination report, private treatment records and hearing testimony. Particularly relevant is the private medical opinion regarding the Veteran's current knee disability and his military service. 

The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers. It is material as it addresses the previously unestablished facts of an in-service injury and the possibility of a nexus between the current left knee disability and active duty service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for a left knee disability is warranted.




III. Service Connection

The Veteran seeks service connection for a sleep disorder, to include sleep apnea. The Veteran alleges his sleep apnea began during his active military service. The Board finds all three elements of the Veteran's claim for service connection are met. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

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). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board recognizes that lay evidence concerning onset and a history of symptoms during or after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

First, service connection requires evidence of a current disability. The Veteran has a current diagnosis of obstructive sleep apnea. See VA Treatment record July 2009. 

Next, service connection requires evidence of an in-service event, injury or disease. The evidence of record is divided with regard to the issue of whether the Veteran experienced sleep apnea symptoms during service. On the one hand, there are statements from the Veteran, the Veteran's former wife and a fellow service member that his sleep apnea had its onset during service. On the other hand, there are no service treatment records (STRs) which corroborate the Veteran's assertions.

The Veteran has consistently stated his symptoms began in-service. The Veteran reported that in-service he was frequently tired, fatigued and sluggish, had a sore throat, and his fellow service members would report he snored loudly. See September 2015 hearing transcript. The Veteran' statements are credible and he is competent to describe the onset of his symptoms, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Further, the Veteran has provided lay statements from a fellow service member and his wife at the time of his active duty service. The Veteran's former wife reported during the parties' marriage, from 1988 to 1993, while the Veteran was on active duty service he would loudly snore, wake up choking and gasping for air, had trouble sleeping and would often wake up with headaches and a sore throat. See September 2014 statement.  The Veteran's former wife is credible and she is competent to describe the Veteran's onset of symptoms. In addition, a lay statement from a fellow service member has been made part of the claims file. The Veteran's fellow service member reported while serving in Korea together the Veteran would snore loudly often waking up choking and gasping for air. See September 2014 statement. The fellow service member's statement is credible and he is competent to report the symptoms he observed. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

On the other hand, there are no service treatment records (STRs) which corroborate the Veteran's assertions. The Veteran's service treatment records (STRs) do not reveal any complaints or findings related to sleep apnea. At separation, on the Report of Medical History the Veteran did not indicate trouble sleeping, headaches or throat trouble. See June 1991 Report of Medical History. The Veteran has indicated receiving treatment in-service however, the RO, in January 2001, received verification from the National Personnel Records Center (NPRC) that there were no additional STRs available for the Veteran. See January 2001 Request for Information. 

As such, the Board finds that the evidence of record is in equipoise as to whether the Veteran's sleep apnea began in-service. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The lay evidence of record and statements from the Veteran, his former wife, and fellow service member are credible and all are competent to describe the Veteran's symptoms. Weighing the absence of medical evidence against the competent and credible lay evidence of record, the Board finds it is in equipoise as to whether the Veteran's sleep apnea began in-service. Therefore, the second element an in-service injury, event or disease is met. See 38 U.S.C.A. § 1154 (West 2014). 

Finally, concerning the third element of service connection, there is competent evidence of record establishing a nexus between the Veteran's currently diagnosed sleep apnea, and his symptoms in-service. The competent and credible medical and lay evidence of record weighs in favor of the claim for service connection.

A September 2015 private medical opinion has been made part of the claims file. See September 2015 medical opinion. The examiner noted the Veteran's current diagnosis of sleep apnea. The examiner found the Veteran's symptoms of snoring, waking up with chest tightness, chronic fatigue, apneic episodes and daytime somnolence while in-service indicate he had sleep apnea during his active military service.  The physician's opinion contains a review of the Veteran's history and has analysis supported by the record. Therefore, the opinion is of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

In conclusion, the evidence is at least in equipoise as to whether the Veteran's sleep apnea is related to service. The evidence weighs in favor of finding that the Veteran's current sleep apnea is related to active military service. As such, resolving all reasonable doubt in favor of the Veteran, service connection for sleep apnea is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.101 (2015).  


ORDER

New and material evidence having been received, the claim for service connection for a left knee disability is reopened; the appeal is granted to this extent only. 

Service connection for obstructive sleep apnea is granted. 


REMAND

The Veteran seeks a compensable rating for a service-connected right umbilical hernia, and service connection for a left knee disability and a right knee disability. The Board finds further development is warranted before these claims are decided.

Right Umbilical Hernia

The Board finds that further development is required before the Veteran's claim for a compensable rating for his service-connected right umbilical hernia is decided. A remand is necessary to obtain additional medical records and a new VA examination. 

VA has a duty to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran indicated that he had surgery on his umbilical hernia in August 2014, at Olin E. Teague Veterans' Medical Center in Temple, Texas, following the most recent VA Examination on August 5, 2014. See September 2015 hearing transcript. VA treatment records are associated with the claims file from 2004 through January 2014. As it appears there may be VA treatment records outstanding, the Board finds a remand is necessary so appropriate attempts can be made to locate and obtain these records. 

Lastly, in the September 2015 hearing, before the undersigned VLJ, the Veteran testified that his symptoms have worsened and he has been experiencing pain and pressure since his most recent VA examination. See September 2015 hearing transcript. A VA examination was most recently administered on August 5, 2014. The Veteran indicated he underwent hernia surgery in August 2014, after his August 5, 2014 VA examination. See September 2015 hearing transcript. In light of the Veteran's testimony regarding surgery and his current symptoms, the Board finds that a current VA examination is warranted.   

Left Knee Disability and Right Knee Disability

The Veteran contends he is entitled to service connection for a right knee disability and a left knee disability. A remand is necessary to obtain potential private treatment records and a new VA examination. 

VA has a duty to assist in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran reported he is receiving ongoing treatment at the Austin Regional Clinic related to his left and right knee disabilities. See September 2015 hearing transcript. Treatment records from the Austin Regional Clinic have been made part of the claims file from 1999 to 2013. As the Veteran has identified potentially relevant treatment records to his left and right knee disabilities, a remand is necessary so appropriate attempts can be made to locate and obtain these records.  

VA has a duty to assist which includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4).  The Veteran was provided with a VA examination in January 2012. The examiner found that the Veteran's current left and right knee disability was less likely than not incurred in or due to his active military service. See January 2012 VA examination. In the September 2015, hearing, before the undersigned VLJ, the Veteran testified that his left and right knee disability has persisted since service and worsened since his most recent VA examination. See September 2015 hearing transcript. Further, VA treatment records indicate the Veteran has had continued treatment and surgery on his knees since his most recent VA examination. While the January 2012 VA examiner did not find a nexus, his current statements give rise to a duty for VA to assist in providing an addendum examination, as the prior examination may no longer be an accurate reflection of his current disability. As such, the Board finds that a remand is warranted for an addendum VA examination.  

Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding VA treatment records to include from Olin E. Teague Veterans' Medical Center in Temple, Texas from August 2014 forward, relating to the Veteran's umbilical hernia.  

2. Contact the Veteran and request that he submit or authorize for release all private treatment records associated with his left and right knee disability. Specifically, there is an indication the Veteran continues to undergo medical treatment from Austin Regional Clinic. 

All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them in accordance with 38 C.F.R. § 3.159(e).

3. After performing the directives above, schedule the Veteran for a VA examination to determine the current severity of his service-connected umbilical hernia. Relevant records in VBMS and Virtual VA must be made available to and reviewed by the examiner. The examiner should describe the functional effects caused by the Veteran's umbilical hernia, to include any effects on employment and daily life. A complete rationale must be provided for any opinions expressed. 

4. After performing the directives above, schedule the Veteran for a VA examination as to the Veteran's left and right knee disabilities. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question:
	
a. Is it at least as likely as not (50 percent probability or greater) than any current right knee disability and / or left knee disability began in or is etiologically related to service?

The examiner's attention is directed to the April 2015, private opinion which indicates a possibility that the Veteran's current knee disabilities are due to injuries incurred during active military service. See April 2015 medical opinion. 

The examiner must provide a rationale for the opinion expressed. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against.

The term "as likely as not" (at least fifty percent probability) does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

4. Thereafter, take any additional development action deemed warranted and readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond.

The appellant has the right to submit additional evidence and argument on the matter or 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 2014).
      


______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs