Citation Nr: 1758055 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-14 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange. 2. Entitlement to service connection right lower leg condition. 3. Entitlement to service connection for rotator cuff, left shoulder. 4. Entitlement to service connection for left lower leg condition. 5. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for right knee injury/condition. 6. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for GERD (now claimed as acid reflux). REPRESENTATION Veteran Affairs represented by: The American Legion ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Air Force from July 1966 to December 1970, including one year of service in Vietnam. The Veteran served as a member of the U.S. Air Force Reserve in 1977, and retired in October 2002. While in the U.S. Air Force Reserve, the Veteran was called to active duty service from January 1991 to May 1991 and from October 2001 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina in September 2009 and November 2009. The Veteran's claim for service connection for disability of the knees was originally denied in a January 1971 decision. The Veteran was notified of the decision in January 1971. The Veteran did not appeal the denial. The appeal became final. The January 1971 decision represents the final action on the merits of the disability of the knees service connection claim. See Glynn v. Brown, 6 Vet. App. 523 (1994). The January 1971 decision represents the last final decision on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the Veteran's claim for service connection for gastroesophageal reflux disability (GERD) was originally denied in a May 2003 decision. The Veteran was notified of the denial the same month; however, he did not appeal the denial. The appeal became final. The May 2003 rating decision represents the last final action on the merits of the GERD service connection claim. See Glynn v. Brown, 6 Vet. App. 523 (1994). The May 2003 decision represents the last final decision on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The September 2009 rating decision denied service connection for rotator cup, left shoulder, right lower leg and left lower leg condition. In that same rating decision, the claims for service connection for GERD and right knee injury/condition were denied because the evidence submitted was not new and material. The November 2009 rating decision denied service connection for sleep apnea. In March 2016, the Board remanded the issues of entitlement to sleep apnea, right and left lower leg conditions and whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for a right knee disability and GERD for further development. The issue of entitlement to service connection for rotator cuff, left shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The more probative evidence fails to demonstrate that the Veteran has sleep apnea that is related to his military service. 2. The more probative evidence fails to demonstrate that the Veteran has a right lower leg condition that is related to his military service. 3. The more probative evidence fails to demonstrate that the Veteran has a left lower leg condition that is related to his military service 4. An unappealed January 1971 rating decision denied the claim of service connection for right knee disability. 5. The evidence received since the January 1971 rating decision does not relate to any unsubstantiated fact in the previously denied claim; and does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for right knee disability. 6. An unappealed May 2003 rating decision denied the claim of service connection for GERD. 7. The evidence received since the May 2003 rating decision does not relate to any unsubstantiated fact in the previously denied claim; and does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for GERD. CONCLUSION OF LAW 1. The criteria for the establishment of service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303 (2017). 2. The criteria for the establishment of service connection for a right lower leg condition are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303 (2017). 3. The criteria for the establishment of service connection for a left lower leg condition are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303 (2017). 4. New and material evidence has not been received to reopen a claim of entitlement to service connection for a right knee condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 5. New and material evidence has not been received to reopen a claim of entitlement to service connection for GERD (now claimed as acid reflux). 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). New and Material Evidence Right Knee Injury The Veteran's most recent claim of entitlement to service connection for disability of the knees was denied in a January 1971 decision. The Veteran did not appeal the decision; therefore, it became final. 38 U.S.C.A. §§ 7105; 38 C.F.R. § 20.1103. In July 2009, the Veteran filed an application to reopen only the right knee disability claim. The Board notes that while the original denial was for a disability of both knees, the Veteran only file a claim to reopen a disability claim for the right knee. The Board has carefully reviewed the newly submitted evidence. And while such evidence is considered new, it is not material. More specifically, it does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for right knee injury. In this case, it does not demonstrate that the Veteran has a right knee injury/condition. The April 2009 VA general examination shows the veteran has a full range of motion in all joints, swelling. As none of this newly submitted evidence pertains to the reason for the prior denial nor raises the reasonable possibility of substantiating the Veteran's underlying claim, his request to reopen the previously disallowed claim of entitlement to service connection for right knee injury is denied. 38 C.F.R. § 3.156 (a). To open and consider this claim on the merits would be a hollow and technical decision, given the paucity of evidence to even trigger VA's further duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 123-24 (2010) (Lance, J. concurring) ("[I]f the evidence is not sufficient to trigger the duty to assist, then reopening the claim only to deny it without providing assistance would be a hollow, technical decision. There is no reason to expend agency resources on a semantic determination that is not tied to a meaningful procedural duty.") GERD Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105. However, the Veteran may request that VA reopen his claim upon the receipt of "new and material" evidence. 38 U.S.C.A. § 5108. 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. Id. See also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The Veteran's most recent claim of entitlement to service connection for GERD was denied by a RO rating decision dated in May 2003. The basis for the denial was that there was no evidence of treatment or a diagnosis of GERD in service and there was no evidence to show his condition was related to his active duty service. The Veteran did not appeal the decision; therefore, it became final. 38 U.S.C.A. §§ 7105; 38 C.F.R. § 20.1103. The Veteran filed an application to reopen the claim (now claimed as acid reflux) in July 2009. The evidence added to the record since the May 2003 denial includes VA treatment records. The Board has carefully reviewed the newly submitted evidence. While such evidence is considered new, it is not material. More specifically, it does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for GERD (now claimed as acid reflux). In this case, it does not demonstrate that the Veteran had any in-service complaints regarding GERD (now claimed as acid reflux) or that any current GERD (now claimed as acid reflux) is related to active duty service or any incident therein. Because none of this newly submitted evidence pertains to the reason for the prior denial nor raises the reasonable possibility of substantiating the Veteran's underlying claim, the request to reopen the previously disallowed claim of entitlement to service connection GERD (now claimed as acid reflux) is denied. 38 C.F.R. § 3.156 (a). Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Sleep Apnea The Veteran is seeking service connection for sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange. Initially, the Board notes that sleep apnea is not a presumptive disorder with respect to herbicide exposure and as such will be denied based on presumptive service connection. The Veteran is currently diagnosed with sleep apnea. Therefore, the Veteran has a current diagnosis as required by 38 C.F.R. § 3.303. Service treatment records fail to show treatment or a diagnosis of sleep apnea. The Veteran's October 1970 separation examination notes had difficulty falling asleep for years; however, the Veteran attributed it to shift work. Medical evidence from a private physician, including December 2004 treatment records, reflect a diagnosis of obstructive chronic sleep apnea. However, the examiner did not provide a nexus opinion. In March 2017, the Veteran was provided a VA examination regarding the claimed disability. The examiner concluded that; it is less likely than not that the Veteran's current sleep apnea was incurred in or caused by the claimed in-service injury, event or illness. He opined that the Veteran was diagnosed with sleep apnea in June 2011. The examiner acknowledged notes that the Veteran was diagnosed earlier, in 2003, but was unable to locate a sleep study prior to 2011. The examiner noted the Veteran's 3 periods of service but concluded, that it is less likely than not that the Veteran's current sleep apnea had its onset during any period of active duty, within one year of any period of active duty, or was otherwise caused or aggravated during any period of the Veteran's military service. Additionally, he determined that it is less likely than not that the Veteran's current sleep apnea is proximately due to or aggravated by his service-connected disabilities. The Board notes, the examiner did highlight that his active duty and presumptive period medical and dental records were reviewed, with care and consideration and that those records lacked any objective hypoapnea-based, clinical evidence to support a diagnosis, treatment, injury and/or event related to sleep apnea. Furthermore, the VA examiner referenced the September 1996 medical record that clearly reflects, that after review of the Veteran's medical records, no medical problems were found to keep the Veteran from re-enlisting. Furthermore, medical records from the presumptive period were silent for any complaints, diagnosis, treatment, injury and/or event related to sleep apnea. The May 2017 VA examiner's opinion addressed the Veteran's assertion that he had "frequent trouble sleeping". The examiner noted that October 1970 separation report, noted the etiology and nature of that assertion involved shift work. Additionally, the Veteran's lay statements asserted "trouble falling asleep" rather than symptomatology related to disturbance of pulmonary function and nocturnal oxygen saturation reduction diagnostic for sleep apnea. The examiner noted that there was a lack of objective hypoapnea-based, clinical evidence to support a diagnosis of sleep apnea. The examiner provided a well-developed rationale that reflects a thorough review of the Veteran's treatment and medical records. The Board has conceded the Veteran's exposure to herbicides (Agent Orange) while serving in Vietnam. Consequently, the Veteran is service-connected for diabetes mellitus, type II. In considering this theory of service connection, the May 2017 VA examiner reported that current internal medicine and hypoapnea studies involving participants with both systemic diseases, to include Diabetes Mellitus, Type II, and sleep apnea, are few and lack sufficient objective medical and/or hypoapnea-based clinical evidence to support a nexus between mild clinical manifestations related to Diabetes Mellitus, Type II and sleep apnea. The Board notes the submission of a January 2010 letter from a private physician regarding the etiology of the Veteran's sleep apnea. However, the letter offers no support or rationale for the finding. As no rationale for the opinion was provided, it is not afforded any probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Additionally, the May 2017 examiner noted, the February 2008 private physician's letter did not include the original diagnostic sleep study and did not reference the onset of the disability. Further, the May 2017 examiner determined that the January 2010 private physician's comments were merely speculative because "there was a lack of any reference to and/or consideration of the active duty and presumptive period military medical records that clearly and unmistakable lacked any objective hypoapnea-based, clinical evidence to support symptomatology and pathophysiologic characteristic related to and necessary for the clinical diagnosis of sleep apnea". With consideration of the above, the Board notes that the competent evidence does not support the Veteran's contentions that he has sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange that was caused by or related to his military service. The Board finds that the medical evidence is more probative than the Veteran's statements. Although the Veteran can attest to having sleep problems, as this is within the common knowledge of lay persons, the factual picture presented is complex. Whether the Veteran has sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange that can be linked to service, cannot be determined by mere observation alone. The Board finds that determining the exact cause of the Veteran's disability is not within the realm of knowledge of a non-expert given the above facts. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that his nexus opinion in this case is not competent evidence and therefore is not probative of whether the Veteran has sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange that is related to his military service. Thus, the Veteran's statements are afforded less probative value with respect to the medical question of whether he has sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange that is related to his military service. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Accordingly, given the record before it, the Board finds that the evidence against the claim for service connection for sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange is more probative than the evidence in favor of the claims. Therefore, the Veteran's claim for service connection for sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange must be denied and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) Right Lower Leg Condition The Veteran seeks service connection for a right lower leg condition that he believes is related to his military service. In August 2009, the Veteran was provided notification regarding what information was needed to substantiate his claims. At the outset, the Board notes that the Veteran has provided little information concerning the exact nature of his claim or his theory of entitlement. Thus, the Board will consider generally whether the evidence supports a finding of service connection for any diagnosed disability of the right lower leg. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (requiring consideration of alternative disabilities within scope of claim). The post-service records the Veteran submitted are silent for treatment related to the Veteran's right lower leg condition and for complaints related to a right lower leg condition. The Veteran's STRs are also silent for any complaints related to his right lower leg condition and contain no indication that the Veteran sustained any right lower leg injury in service, absent the notation of leg cramps from football, that were not considered significant, on his October 1970 separation examination. Additionally, the Veteran has not asserted that he sustained any injury in service to which he believes his right lower leg condition is related. Indeed, other than applying for service connection for a "right lower leg condition," the Veteran has provided no information regarding the specifics of his claim and the evidence does not otherwise in any way suggest that the Veteran's right lower leg condition may be attributable to service. In short, there is no basis upon which to conclude that the Veteran's right lower leg condition is in any way directly attributable to service. Indeed, not only is there no evidence of a right lower leg condition in service, the Veteran has not indicated any specific event or injury in service to which he attributes his current disability. Thus, in light of the Veteran's own statements, or lack thereof, and the medical evidence of record, there is no basis to establish service connection for right lower leg condition, as two crucial elements of service connection have not been shown. See Davidson, supra; see also Maxson, supra. Left Lower Leg Condition The Veteran seeks service connection for a left lower leg condition that he believes is related to his military service. In August 2009, the Veteran was provided notification regarding what information was needed to substantiate his claims. At the outset, the Board notes that the Veteran has provided little information concerning the exact nature of his claim or his theory of entitlement. Thus, the Board will consider generally whether the evidence supports a finding of service connection for any diagnosed disability of the left lower leg. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (requiring consideration of alternative disabilities within scope of claim). Records are silent for treatment related to the Veteran's left lower leg condition and for complaints related to a left lower leg condition. The Veteran's STRs are also silent for any complaints related to his left lower leg condition and contain no indication that the Veteran sustained any left lower leg condition injury in service, absent the notation of leg cramps from football, that were not considered significant, on his October 1970 separation examination. Additionally, the Veteran has not asserted that he sustained any injury in service to which he believes his left lower leg condition is related. Indeed, other than applying for service connection for a "left lower leg condition," the Veteran has provided no information regarding the specifics of his claim and the evidence does not otherwise in any way suggest that the Veteran's left lower leg condition may be attributable to service. In short, there is no basis upon which to conclude that the Veteran's left lower leg condition is in any way directly attributable to service. Indeed, not only is there no evidence of a left lower leg condition in service, the Veteran has not indicated any specific event or injury in service to which he attributes his current disability. Thus, in light of the Veteran's own statements, or lack thereof, and the medical evidence of record, there is no basis to establish service connection for left lower leg condition, as two crucial elements of service connection have not been shown. See Davidson, supra; see also Maxson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a left lower leg condition. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Therefore, the Board concludes that service connection for a left lower leg condition is not warranted and the appeal is denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303. Although the Board is sympathetic to the Veteran's claim and appreciative of the Veteran's honorable service to our country, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). ORDER Service connection for sleep apnea, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicides, including Agent Orange is denied. Service connection for a right lower leg condition is denied. Service condition for a left lower leg condition is denied. New and material evidence having not been received; the application to reopen the claim of entitlement to service connection for right knee injury/condition is not reopened. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for GERD (now claimed as acid reflux) is not reopened. REMAND While further delay is regrettable, the Board finds that a remand is warranted before a decision may be rendered on this issue. Service treatment records from May 2002 demonstrate the Veteran had a rotator cuff tear and impingement to the right shoulder, as well as surgery to that right shoulder. However, there are no treatment records regarding the left shoulder rotator cuff. Correspondence from July 2009 indicates the Veteran has had rotator cuff surgery on the left shoulder in 2001, while on active duty and the same surgery on his right shoulder in 2005. Regarding the left shoulder, there is no medical evidence supporting an in-service injury to the left rotator cuff. Additionally, to date, there has been no medical opinion proferred regarding: 1) whether the Veteran has a current diagnosis or in-service occurrence regarding his rotator cuff, left shoulder and 2) If there is a current diagnosis, whether there is a nexus between the Veteran's current rotator cuff, left shoulder diagnosis and an in-service occurrence and whether the Veteran's rotator cuff, left shoulder initially manifested during service or is directly due to service. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain and associate any outstanding private and VA treatment records identified by the Veteran and associate them with the claims file for consideration in this appeal. 2. Ask the Veteran to identify all sources of treatment that he has received for his left rotator cuff and left shoulder and to provide any releases necessary for VA to secure records of such treatment or evaluation. Allow a reasonable time for response. The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources. 3. Notify the Veteran that he may submit lay statements from himself and/or from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left shoulder symptomatology. The Veteran should be provided an appropriate amount of time to submit this additional lay evidence. 4. Only after steps 3 through 6 are accomplished, schedule the Veteran for an examination by an appropriate VA medical professional, in order to determine whether the Veteran has a current diagnosis and if it is at least as likely as not that the Veteran's rotator cuff, left shoulder condition is related to or had its onset during active duty service. The following considerations must govern the examination: a) The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. b) If the relevant treatment records are obtained or other pertinent evidence are added to the claims file, the examiner should consider this and any other relevant medical records and lay statements in determining whether the Veteran's rotator cuff, left shoulder is related to his active duty service. The VA examiner should not use the absence of requested medical records to provide a negative opinion, but should consider the April 2010 buddy statement from the Veteran's fellow Master Sergeant, regarding the Veteran's left rotator cuff injury and stated surgery. c) All indicated testing must be accomplished. The examiner must consider the Veteran's lay statements and note in his or her report whether there is a medical basis for corroborating or discounting the credibility or reliability of the statements. d) The examiner must provide a diagnosis for any left shoulder disability found as a result of considering the claims file and from examining the Veteran. e) For any left shoulder disability diagnosed, the examiner must specifically opine whether that disability (1) began during service, or (2) is related to any incident of service. f) In all conclusions, the examiner must identify and explain the medical bases of his or her opinion with reference to the claims file. g) The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion. The Veteran 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). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs