Citation Nr: 1752585 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-25 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of service connection for right-foot disorder. 2. Entitlement to service connection for right-foot disorder. 3. Entitlement to service connection for obstructive sleep apnea (OSA). REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 1975 to October 1999, during which, among his other decorations, he was awarded the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In January 2017, the Veteran attended a video conference hearing before the undersigned. The hearing transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. The issue of entitlement to service connection for right-foot disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a right foot disorder, including corns and bunions was denied by rating action of March 2009, there was no appeal and the decision became final. 2. Evidence received since the prior final denial is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim for service connection for right-foot disorder 3. OSA was not caused by, the result of or aggravated by an in-service injury, event or illness. CONCLUSIONS OF LAW 1. The March 2009 rating decision denying service connection for a right foot disorder is final. 38 U.S.C § 7105 (2012). 2. Evidence has been received sufficiently new and material to reopen the claim for right-foot pain (previously claimed as right-foot condition, corns and bunions). 38 U.S.C. §§ 1101, 1110, 1131, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's Assertions In his Board hearing testimony, the Veteran contends that his right-foot disorder was incurred in service in two instances of frostbite and an excessively long march carrying a full pack, leading to his current disability of right-foot calluses and bunions. The Veteran further contends that his in-service separation examination, based on the Veteran's report of symptoms, indicates "trouble sleeping" and this is directly connected to his November 2009 sleep study diagnosis of OSA. Additionally, the Veteran asserts that the VA examination is inadequate, because the VA examiner did not consider the statements of the Veteran's wife and fellow marines and an opinion of the Veteran's primary care physician, Dr. J. F. He adds that the RO's August 2013 Statement of the Case (SOC) wrongly assigned less probative value to this opinion based on its belief that Dr. J. F. had not reviewed the Veteran's STRs. New and Material Evidence A claim that is the subject of a final decision may be reopened upon the submission of new and material evidence. 38 U.S.C. § 5108. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). A March 2009 rating decision denied service connection for the Veteran's right foot disorder, corns and bunions because the condition was not shown in service. The decision stated that the report of Dr. J. F. shows that the right-foot corn and bunions of both feet were not diagnosed until 2007. The RO notified the Veteran of the decision on March 11, 2009, the Veteran did not file a timely appeal and the decision became final on March 11, 2010. A July 2012 rating decision did not reopen the claim and continued the denial. The decision noted that the evidence submitted, although new, did not constitute material evidence because the records from San Diego VA, Dr. K. N. and Dr. J. F. did not provide evidence of the onset of right-foot pain/condition, corns and bunions during active military service and there was no medical opinion relating the current condition to any disease, injury or event in service. A January 2017 submission to the record by the Veteran contains the statement of Dr. J. F., in which he summarizes the Veteran treatment history in service and afterward under Dr. J. F.'s care. Dr. J. F. opined that "[the Veteran's right-foot disorder] was directly caused by his active duty military service." He explained that all the Veteran's disorders as summarized can directly be traced back to his active duty status and that Dr. J. F.'s review and rewrite up of his medical conditions was to clarify that the pain and arthritis of the Veteran's right foot originated while on active duty. Regardless of what the RO has determined regarding new and material evidence, the Board must make its own determination, as this in turn establishes the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). In presuming its credibility, the Board finds this evidence to be new and material sufficient to reopen the claim for service connection for a right-foot disorder, because it was not previously of record and speaks to a possible nexus to service. This is a previously unestablished fact, which raises a reasonable possibility of substantiating the claim. Moreover, the Board is satisfied that the RO, besides having considered whether new and material evidence had been submitted, addressed the substance of the claim in both the March 2007 and July 2012 rating decisions and, therefore, the Board can properly proceed with its own de novo review. Accordingly, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Veteran's OSA The Veteran's service treatment records (STRs) indicate that his September 1975 induction examinations, as well as in-service examinations for September 1978, August 1982, September 1989, and October 1997, have the box for "frequent trouble sleeping" checked as "NO." In addition, although no category for OSA appears with the clinical evaluation choices on the examination notes, boxes for nose, sinuses, mouth and throat, lungs and chest, and vascular were all noted as "NORMAL." In November 2009, the Veteran presented for a sleep study at San Diego VA for possible OSA. The impression was stated as minimal obstructive sleep apnea by apnea hypopnea index. The attending physician added that there is evidence of airflow resistance on the recording, which is suggestive of the upper airway resistance syndrome, a variant of obstructive sleep apnea. She further stated that this study cannot fully rule out the periodic limb movement during sleep syndrome (PLMS). In March 2012, the Veteran underwent a VA examination, in which he was diagnosed with sleep apnea, obstructive. The March 2012 VA examiner opined that the Veteran's OSA was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She explained that OSA presents with excessive night-time snoring and frequent episodes of apnea resulting in decreased oxygenation over the period of the night causing extreme day-time fatigue and hypersomnolence. She added that OSA is different from an upper respiratory or chronic obstructive disease, as in rhinitis and asthma. The March 2012 VA examiner further stated that the conditions show themselves by acute shortness of breath and post-nasal discharge, which affect the patency (being free from obstruction) of the bronchi and bronchioles of the lungs. At this point the Board notes that the Veteran, in voicing his contentions through his representative, has not been specific in giving dates when referring to the VA examination for OSA and the opinion of Dr. J. F. The Board, as best as it can understand the record, has determined the VA examination to be the March 2012 VA examination and the opinion to be the June 2013 opinion of Dr. J. F. In his opinion Dr. J. F. states that after looking at the evidence, the statements of M. G. D., S. D., the Veteran's wife, and the diagnosis from the VA Sleep Apnea Lab, it is his conclusion that the Veteran had sleep apnea during his tour in the United States Marines. M. G. D's statement recounts that on numerous occasions, he witnessed the Veteran either having to be awakened due to choking while asleep or awakening from sleep gasping. S. D. states that he has witnessed the Veteran snoring and waking up on many occasions gasping for air. The Veteran's wife states that there have been numerous occasions in which she had awakened the Veteran from sleep for heavy snoring or gasping for air. Once again, unless the Board is in some way mistaken, the relevant VA examination and opinion to which the Veteran refers is dated March 2012. Therefore, it pre-dated Dr. J. F.'s opinion by over a year and the March 2012 VA examiner could not have considered it. The statement of the Veteran's wife is dated May 2013; the statement of M. G. D. is dated April 2013; the statement of S. D. is undated; and all three statements were received into the claims file in June 2013. It does not appear that the March 2012 VA examiner could have had access to these statements. Moreover, the November 2009 sleep study on which Dr. J. F. further relies does not address service connection, but only establishes the Veteran's current condition. In addition, regardless of whether Dr. J. F. had reviewed the Veteran's STRs in July 2008 when addressing himself to the Veteran's right-foot disorder, his June 2013 opinion pertaining to OSA provides no rationale for his opinion; it is conclusory and without clinical explanation. For these reasons, the Board assigns limited probative value to his opinion. In contrast, the March 2012 VA examiner explained that OSA is different from an upper respiratory or chronic obstructive disease, as in rhinitis and asthma, with their symptoms of acute shortness of breath and post-nasal discharge, which affect the freedom from obstruction of the airways of the lungs. This explanation of the Veteran's symptoms is borne out in the record. For example, the Veteran's STRs show that by his September 1989 in-service examination, boxes for hay fever, shortness of breath, pain and pressure in the chest were marked "YES." Additionally, the examiner describes the Veteran's conditions as seasonal hay fever, shortness of breath, wheezing, and generalized allergies with sneezing. The examiner further noted that in August 1989, the Veteran was diagnosed with bronchitis/pneumonia, was treated and it was considered resolved Moreover, in the Veteran's August 1994 pre-procedure records for the Veteran's right-knee arthroscopy and partial meniscectomy procedure, asthma is noted as one of the Veteran's medical problems, as is his use of an asthma inhaler. In his October 1997 in-service examination, hay fever was checked as "YES" and the examiner describes it as mild allergic rhinitis. By the time of the Veteran's separation examination in September 1999, the Veteran answered "YES" to sinusitis, asthma and hay fever or allergic rhinitis. The examiner's notes describe his conditions as seasonal allergies; mild intermittent asthma triggered by seasonal grasses; and he was prescribed decongestants and other allergy medications. Significantly, the Veteran's October 2007 VA examination, records the Veteran's reports of reactive airway disease since 1978, when still in service. The Veteran reported shortness of breath in certain weather conditions and when exerting himself. Clinically, the October 2007 VA examiner found mild obstruction on pulmonary function testing. The foregoing details from the Veteran's STRs and the October 2007 VA examination show consistent findings upon examination which themselves are consistent with the March 2012 VA examiner's conclusion that the Veteran more likely suffers from a chronic obstructive disease of a type associated with rhinitis and asthma. Moreover, in noting the Veteran's reports and making findings, neither the in-service examinations nor the October 2007 VA examination contain any contemporaneous findings of OSA. Additionally, as stated above, the Veteran further contends that the March 2012 VA examiner did not consider the statements of the statements of M. G. D. and S. D., who served with the Veteran, and the Veteran's wife. Even if she could not have considered the statements of the Veteran's wife and his fellow marines, the March 2012 VA examiner did not reject any assertion that the Veteran exhibited symptoms which might appear to be similar to OSA, but concluded that the symptoms are more indicative of upper respiratory or chronic obstructive disease, as demonstrated in the examination findings, to include the STRs and the October 2007 VA examination. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, M.G. D., S. D. and the Veteran's wife are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, the Board must emphasize that they are not competent to diagnose or interpret accurately findings as to the origin or relation to service of his disability, as this requires highly specialized knowledge and training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. In the absence of an explicit indication in the contemporaneous evidence of service connection, it must rely on medical findings and opinions. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons stated, the Board finds the opinion of the March 2012 VA examiner to be adequate for the purpose of determining service connection and assigns to it significant probative weight. The Board further finds that the Veteran's OSA was not caused by, the result of or aggravated by an in-service injury, event or illness. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER New and material evidence having been received to reopen the claim of service connection for a right-foot disorder, the appeal is granted to this extent only. Entitlement to service connection for OSA is denied. REMAND The record contains two VA foot examinations in January 2009 and April 2011. The findings and diagnosis in the January 2009 are quite specific for the left foot and in fact the addendum states that "the VA referral is only a focused examination for service-connected CORN, LEFT FOOT." However, the examiner also added that she had noted common deformities for both feet. The April 2011 VA examination also was specifically conducted for a corn of the left foot, its diagnosis and remarks addressed only the left foot and it included x-ray findings for the left foot only. However, the April 2011 VA examiner also examined both feet and noted that the right foot revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy or disturbed circulation, and active motion in the metatarsophalangeal joint of the right great toe. Additionally, there was no tenderness to palpation of the plantar surface of the right foot normal alignment of the Achilles tendon on the right in both weight bearing and non-weight bearing. Both examinations provide neither findings nor opinions which pertain to the issue of service connection for the Veteran's right-foot disorder. STRs reveal that in January 1979 the Veteran presented with complaints of frostbite to both feet and that in April 1984, the Veteran, after a particularly long march, presented with having experienced pain in both feet for approximately two weeks. The examiner noted no edema; there was full range of motion; no erythema or ecchymosis; but slight crepitus in metatarsal tendons; and no crepitus in the Achilles tendon. He assessed only the Veteran's left foot with a possible stress fracture. An April 1984 radiographic report noted the pain as being in the soles of both feet, but x-rays results were negative. The record contains no opinion, based on clinical findings, which addresses the issue of service connection for the right-foot disorder. VA's duty to assist includes the obligation to provide an examination in regard to claims for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See 38 U.S.C. § 5103A (d) (West 2012); McClendon v. Nicholson, 20 Vet. App. 79 (2006). For the reasons stated, this claim must be remanded for a VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for his right-foot disorder at any VA facility and by any private treatment provider. Obtain any records pertaining to the above requests for information not yet associated with the claims file and associate them with the claims file. The Veteran's assistance should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records pertaining to the Veteran's right-foot disorder have been obtained and associated with the claims file, but whether or not records are obtained, schedule the Veteran for examinations with VA examiners with an appropriate specialties to produce findings pertaining to right-foot disorders. The examination for the Veteran's disability should provide findings and a diagnosis as to the nature, extent and the current severity the right-foot disorder, to include a review of the entire electronic claims file. The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all findings. All indicated tests should be accomplished and all findings reported in detail. The examiner is requested to provide an opinion, which addresses whether the Veteran's right-foot disorder is at least as likely as not (a 50 percent probability or more) caused by, made worse by and/or related to his active duty service. The examiner should comment on the findings and opinions of other examiners, which appear in the record. In addition, the opinion should acknowledge, address, consider, and discuss the Veteran's testimony at his January 2017 Board hearing and all lay evidence in the record pertaining to the Veteran's right-foot disorder, to include, his lay statements, any lay statements of his wife, family members, friends, co-workers, or others, as well as the Veteran's reports to providers, as they appear throughout the record. Findings should be reconciled with other records on file to the extent possible. If an opinion cannot be made without resort to speculation, that examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs