Citation Nr: 1603729 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-17 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right ankle disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral foot disability. 3. Whether new and material evidence has been received to reopen a claim of service connection for sleep apnea. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to service connection for a bilateral foot disability, to include pes planus. 6. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to April 1984. These matters come before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran presented testimony at a personal hearing before a Veterans Law Judge in September 2015. A transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). In November 2015, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise the case would reassigned. In December 2015, the Veteran responded that he did not want another hearing. Thus, the Board will proceed with the matter on appeal. The underlying issues of entitlement to service connection for a right ankle disability, a bilateral foot disability, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claims of service connection for a right ankle disability, a bilateral foot disability, and sleep apnea were originally denied in a September 2009 rating decision on the basis that there was no medical evidence of any right ankle or foot disabilities and that there was no evidence that sleep apnea had its onset in service or was otherwise related to service; the Veteran requested reconsideration of his claims and new and material evidence with respect to the claim of service connection for sleep apnea was received within a year of the September 2009 decision; the claims of service connection for a right ankle disability, a bilateral foot disability, and sleep apnea were readjudicated and again denied in a December 2009 rating decision; the Veteran did not appeal the December 2009 decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the December 2009 RO decision includes information that was not previously considered and relates to unestablished facts necessary to substantiate the claims of service connection for a right ankle disability, a bilateral foot disability, and sleep apnea, the absence of which was the basis of the previous denials. CONCLUSIONS OF LAW 1. The RO's December 2009 rating decision that denied the claims of entitlement to service connection for a right ankle disability, a bilateral foot disability, and sleep apnea is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2015). 2. New and material has been received, and the claims of entitlement to service connection for a right ankle disability, a bilateral foot disability, and sleep apnea are reopened. 38 U.S.C.A. §§ 5107(b), 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis Generally, an RO decision denying a claim that has become final may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the RO initially denied the Veteran's claims of service connection for a right ankle disability, a bilateral foot disability, and sleep apnea in a September 2009 rating decision. The claims of service connection for a right ankle disability and a bilateral foot disability were denied, in pertinent part, on the basis that there was no medical evidence of any right ankle or foot disabilities. The claim of service connection for sleep apnea was denied on the basis that there was no evidence that this disability had its onset in service or was otherwise related to service. In September 2009, the Veteran requested reconsideration of his claims and reported that symptoms associated with sleep apnea (i.e., loud snoring) began during service and had continued in the years since that time. As the Veteran provided competent evidence of a continuity of sleep apnea symptomatology in September 2009, the Board finds that new and material evidence was received within a year of the September 2009 rating decision with respect to the claim of service connection for sleep apnea. The claims of service connection for a right ankle disability, a bilateral foot disability, and sleep apnea were readjudicated and again denied in a December 2009 rating decision. The Veteran was notified of this decision, he did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the December 2009 decision became final. See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent new evidence received since the December 2009 denial includes a May 2012 letter from T.G. Higgins, MD, D, ABSM, October 2014 VA x-ray reports, and the Veteran's testimony during the September 2015 hearing. This evidence includes reports of right ankle pain and swelling, x-ray evidence of pes planus, calcaneal spurring, and degenerative changes of the feet, and a medical opinion that some degree of the Veteran's sleep apnea was likely present when he was experiencing snoring at the age of 22 (which was during active service). In light of the evidence of current sleep apnea and the Veteran's reports of a continuity of ankle/foot and sleep apnea symptomatology in the years since service, and Dr. Higgins' opinion, the additional evidence pertains to elements of the claims that were previously found to be lacking and raises a reasonable possibility of substantiating the claims by suggesting that the Veteran may have current right ankle and bilateral foot disabilities and current sleep apnea related to service. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination). As explained in the remand below, the evidence triggers VA's duty to provide examinations as to the nature and etiology of the Veteran's claimed right ankle disability, bilateral foot disability, and sleep apnea. The evidence is, therefore, new and material, and the claims of service connection for a right ankle disability, a bilateral foot disability, and sleep apnea are reopened. ORDER As new and material evidence has been received, the claim of entitlement to service connection for a right ankle disability is reopened, and the appeal is granted to this extent only. As new and material evidence has been received, the claim of entitlement to service connection for a bilateral foot disability is reopened, and the appeal is granted to this extent only. As new and material evidence has been received, the claim of entitlement to service connection for sleep apnea is reopened, and the appeal is granted to this extent only. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. In this case, the October 2014 VA x-ray reports include diagnoses of bilateral pes planus, right foot calcaneal spurring at the plantar and Achilles aspect, and degenerative changes of the left foot. Also, the Veteran reported during the September 2015 hearing that he experienced right ankle pain and swelling and that he was being treated for sleep apnea with continuous positive airway pressure (CPAP). Thus, there is competent evidence of a current right ankle disability, bilateral foot disability, and sleep apnea. Service treatment records include a January 1984 report of medical history form on which the Veteran reported that he experienced "foot trouble," including right foot problems. He contends that he injured his right ankle while repelling in service and that he also began to experience foot and sleep apnea symptoms in service. He has reportedly continued to experience ankle/foot and sleep apnea symptomatology ever since service. Also, Dr. Higgins stated in his May 2012 letter that the Veteran reported snoring at the age of 22 (during his period of active service). He opined that it was likely that some degree of sleep apnea was present at that time. There was no further explanation or reasoning provided for this opinion. Hence, there is evidence of a current right ankle disability, bilateral foot disability, and sleep apnea, an in-service right ankle injury and foot and sleep apnea symptoms in service, and a continuity of ankle/foot and sleep apnea symptomatology in the years since service. Also, there is a medical opinion that the Veteran's sleep apnea likely had its onset in service, but there is no rationale provided for the opinion. This evidence suggests that the Veteran may have a current right ankle disability, bilateral foot disability, and sleep apnea related to service. Therefore, VA's duty to obtain examinations as to the nature and etiology of any current right ankle disability, foot disability, and sleep apnea is triggered. Examinations are needed to determine whether the Veteran has a current right ankle disability and current sleep apnea and to obtain medical opinions as to the etiology of any such disabilities and the current bilateral foot disability. Moreover, the Veteran has reported that he began to receive treatment for foot problems in approximately 1979 at Fort Ord and that he injured his right ankle at that location in 1982 or 1983. He also contends that he was treated for foot and breathing problems at Fort Meade and at a military medical facility in Würtzberg, Germany. It appears that Ford Ord and the medical facility in Würtberg are currently closed. The AOJ contacted the National Personnel Records Center (NPRC) and requested all available service treatment records. The NPRC was only able to obtain partial service treatment records and some of the records were determined to be missing. In light of the specific information provided by the Veteran as to the locations and dates that he received relevant treatment in service, further attempts should be made upon remand to obtain any additional available service treatment records. In addition, a February 2013 decision from the Social Security Administration (SSA) indicates that he was awarded SSA disability benefits. The records related to the SSA's determination have not yet been associated with the file and may be relevant, and therefore should be obtained. Also, the Veteran reported during the September 2015 hearing that he was receiving treatment at an unidentified VA facility for his claimed disabilities (see pages 5 and 8 of the Board hearing transcript). The only VA treatment records in the file are the October 2014 x-ray reports from the VA community based outpatient clinic in Knoxville, Tennessee (CBOC Knoxville). Thus, it appears that there are VA treatment records that have not yet been obtained and must be secured on remand. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Lastly, a December 2014 examination report from Paramount Podiatry, PLLC indicates that the Veteran's primary care physician was Dr. Littlefield. He submitted a signed and completed "General Release for Medical Provider Information" form (VA Form 21-4142a) in March 2015 for records of treatment from Heartland Therapy Provider FCE, Dr. Naylor, Dr. Ivy, and Dr. MacLellan. Furthermore, he reported during the September 2015 hearing that he received treatment from "Dr. Wells." There are no treatment records from the above identified treatment providers in the file. Therefore, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC, Fort Meade, and any other appropriate depository and request all available service treatment records (including all records of the Veteran's treatment for a foot disability and a right ankle injury at Ford Ord between 1979 and 1983 and all records of his treatment for foot and breathing problems at Fort Meade and at a military medical facility in Würtzberg, Germany). If the above identified service treatment records cannot be obtained, take all necessary steps to search alternate sources of records, including following the procedures outlined in VA adjudication manual rewrite, M21-1MR. Specifically request records of any treatment reported by the Veteran. 2. If any of the Veteran's service treatment records are missing or are otherwise unavailable, this fact shall also be documented and a formal finding of unavailability shall be made with notice to the Veteran and his representative. 3. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records relied on to make the decision. 4. Ask the Veteran to identify the name and location of any VA or private medical facility where he has received treatment for a right ankle disability, a foot disability, and sleep apnea, to include the dates of any such treatment. The Veteran shall specifically be asked to complete authorizations for VA to obtain all records of his treatment for a right ankle disability, a foot disability, and sleep apnea from Dr. Littlefield (see the December 2014 examination report from Paramount Podiatry, PLLC), Heartland Therapy Provider FCE, Dr. Naylor, Dr. Ivy, Dr. MacLellan (see the March 2015 VA Form 21-4142a), Dr. Wells (see page 8 of the Board hearing transcript), and any other sufficiently identified private treatment provider from whom records have not already been obtained. Secure any relevant private treatment records for which a sufficient release is received. 5. Obtain all outstanding VA records of treatment, to specifically include: (a) all records from the VA Medical Center in Mountain Home, Tennessee/CBOC Knoxville dated from April 1984 through the present; and (b) all records from any other sufficiently identified VA facility. 6. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current right ankle disability. All indicated tests and studies shall be conducted. All relevant electronic records, including copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. For any current right ankle disability identified (i.e., any right ankle disability diagnosed since October 2010), the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current right ankle disability had its onset during service, had its onset in the year immediately following service (in the case of any currently diagnosed arthritis), is related to the Veteran's reported right ankle injuries in service while repelling, or was otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on any right ankle disabilities diagnosed since October 2010, the Veteran's reported right ankle injuries in service while repelling, and his reports of continuing right ankle symptoms in the years since service. A complete rationale shall be given for all opinions and conclusions expressed. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of any current foot disability. All indicated tests and studies shall be conducted. All relevant electronic records, including copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. For any current foot disability identified (i.e., any foot disability diagnosed since October 2010 including, but not limited to, pes planus), the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current foot disability had its onset during service, had its onset in the year immediately following service (in the case of any currently diagnosed arthritis), is related to the Veteran's reported foot symptoms in service, is related to his physical duties in service, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on any foot disabilities diagnosed since October 2010 (including, but not limited to, pes planus), the Veteran's reported foot symptoms in service, his physical duties in service, and his reports of continuing foot symptoms in the years since service. A complete rationale shall be given for all opinions and conclusions expressed. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of any current sleep apnea. All indicated tests and studies shall be conducted. All relevant electronic records, including copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. For any current sleep apnea identified (i.e., any sleep apnea diagnosed since October 2010), the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current sleep apnea had its onset during service, is related to the Veteran's time spent in a gas chamber in service, is related to his reported sleep symptoms in service (including snoring), or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on any sleep apnea diagnosed since October 2010, the Veteran's reported time spent in a gas chamber in service, his reported sleep symptoms in service (including snoring), the February 2010 statement from the Veteran's ex-wife concerning her observations of the Veteran's sleep symptoms, his reports of continuing sleep apnea symptoms in the years since service, and the May 2012 opinion from Dr. Higgins. A complete rationale shall be given for all opinions and conclusions expressed. 9. After completion of the above development, readjudicate the claims. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and allow an appropriate period of time for response. The Veteran 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 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs