Citation Nr: 1802846 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 17-27 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a gastrointestinal disability. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for cervical spine disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a gastrointestinal disability, claimed as irritable bowel syndrome (IBS). 7. Entitlement to service connection for skin cancer. 8. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 9. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and A. Z. ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran appeared at a hearing before the undersigned in August 2017. A transcript of the hearing is of record. During the August 2017 hearing, the Veteran requested to provide testimony regarding the issue of service connection for sleep apnea. Although not addressed in the April 2017 statement of the case or certified by the Agency of Original Jurisdiction (AOJ), the Board finds the issue of service connection for sleep apnea is encompassed by this appeal, as it was included in the Veteran's January 2016 notice of disagreement. The Board is required to remand the issue for the issuance of a statement of the case, as discussed in more detail in the REMAND section. See Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, the Board finds the Veteran's service connection claim for degenerative disc disease of the spine encompasses both the cervical and lumbar spine, as he has reported both neck and back pain in the context of this appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board has delineated this claim as two separate issues for the sake of clarity, as reflected on the title page of this decision. The issues of service connection for a right knee disability, skin cancer, COPD, and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. VA has received new evidence since a July 1993 rating decision that denied service connection for lumbar spine and gastrointestinal disabilities that relates to the bases for the prior denials and raises a reasonable possibility of substantiating the claims. 2. The Veteran's current cervical and lumbar spine degenerative disc disease is at least as likely as not the result of disease or injury in active service. 3. It is at least as likely as not the Veteran has irritable bowel syndrome that was incurred in or first manifest during active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the service connection claims for lumbar spine and gastrointestinal disabilities. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for cervical and lumbar spine degenerative disc disease have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for entitlement to service connection for irritable bowel syndrome have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence A July 1993 rating decision denied service connection for lumbar spine and gastrointestinal disabilities. The Veteran did not file a timely notice of disagreement or submit new and material evidence within one year of notice of the decision; therefore, the July 1993 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the 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. 38 C.F.R. § 3.156(a). 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. Id. The Court of Appeals for Veterans Claims (Court) has held the phrase "raises a reasonable possibility of establishing the claim" must be viewed as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 "does not require new and material evidence as to each previously unproven element of a claim." Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) creates a "low threshold" for finding new and material evidence that is favorable to the claimant. Id. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Here, the Board finds reopening of the Veteran's service connection claims for lumbar spine and gastrointestinal disabilities is warranted. In August 2017, the Veteran submitted a private opinion that indicates the claimed disabilities are at least as likely as not the result of disease or injury in active service. This opinion was not of record at the time of the initial denials, directly relates to the bases for the prior denials, and raises a reasonable possibility of substantiating the claims. Thus, it constitutes new and material evidence that warrants reopening of the Veteran's claims. II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. A. Spine Disabilities Private treatment records show the Veteran has degenerative disc disease affecting the cervical and lumbar spine. Service treatment records contain evidence regarding multiple back injuries and frequent reports of back pain and sciatica affecting the right lower extremity. Service treatment records also show the Veteran injured both his neck and back in an August 1982 motor vehicle accident. As the current disability and in-service injury requirements have been established, the only issue that remains is whether there is a nexus between the in-service injuries and the current disabilities. In July 2017, one of the Veteran's treating physicians, T.T., M.D., provided an opinion indicating the Veteran's current cervical and lumbar spine degenerative disc disease is at least as likely as not the result of the injuries noted in service. T.T., M.D., explained degenerative disc disease typically starts out with minor injuries, strains, and sprains and progresses to a chronic disability in most instances. T.T., M.D., noted the injuries recorded in service are in the same locations as the current degenerative changes and pointed out the nature of the Veteran's service as a motor transport operator likely caused further displacement and injury to the spine beyond that noted in treatment records. T.T., M.D., further noted the Veteran began seeing a chiropractor shortly after retiring from service with a continuity of symptomology noted to the present after initial gains from chiropractic treatment were not sustained. Based on the available medical record, T.T., M.D., determined he could firmly conclude with a high rate of certainty that the Veteran's current cervical and lumbar spine degenerative disc disease is the result of the Veteran's service. The opinion provided by T.T., M.D., is corroborated by other evidence of record, most notably a spine MRI conducted approximately three month after the Veteran's separation from active service that confirmed multilevel disc derangement. In sum, the Board finds the Veteran's current cervical and lumbar spine degenerative disc disease is at least as likely as not the result of disease or injury in active service. Resolving any remaining reasonable doubt in the Veteran's favor, the Board finds service connection for cervical and lumbar spine degenerative disc disease is warranted. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. B. Irritable Bowel Syndrome T.T., M.D., also determined the Veteran currently has irritable bowel syndrome that is at least as likely as not the result of disease or injury in service. T.T., M.D., acknowledged the Veteran has stopped actively seeking treatment for irritable bowel syndrome, but noted the Veteran elected to stop seeking treatment for the disability after past interventions had little to no success in alleviating his symptoms. T.T., M.D., explained the Veteran's lay reports of chronic diarrhea with at least five watery stools per day are sufficient to support an irritable bowel syndrome diagnosis. The opinion provided by T.T., M.D., is corroborated by the other evidence of record. Symptoms of irritable bowel syndrome are well documented in service treatment records throughout the Veteran's period of active service. Military providers diagnosed the Veteran as having probable irritable bowel syndrome on numerous occasions during his period of active service. There is no suggestion the Veteran had gastrointestinal issues prior to his entry into active service. Thus, the Board finds it is at least as likely as not the Veteran's has irritable bowel syndrome that was incurred in or first manifest in service. Resolving any remaining reasonable doubt in the Veteran's favor, the Board finds service connection for irritable bowel syndrome is warranted. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ORDER The service connection claims for lumbar spine and gastrointestinal disabilities are reopened. Entitlement to service connection for cervical and lumbar spine degenerative disc disease is granted. Entitlement to service connection for irritable bowel syndrome is granted. REMAND As noted in the introduction, the Board finds the Veteran filed a timely notice of disagreement for the August 2015 rating decision regarding the issue of service connection for sleep apnea. Although sleep apnea was not listed in Box 10 on the Veteran's January 2016 VA Form 21-0958 (Notice of Disagreement), he clearly addressed the issue in Box 11A in which he indicated his belief that he has a sleep disorder as a result of a nose injury in service. He has not been issued a statement of the case regarding this issue. Although the Board has taken testimony on the issue, it is required to remand the issue for the issuance of a statement of the case. See Manlincon, supra; 38 C.F.R. § 19.9(c). The duty to assist requires VA to provide an examination 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 military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, there is evidence the Veteran has a right knee disability and COPD, but he has not been provided an examination regarding these claimed disabilities. Although there is evidence that suggests these disabilities may be associated with military service, the Board finds the record does not contain sufficient information to make an informed decision on the Veteran's claims. Thus, the Board finds examinations regarding these claims are necessary. The Board notes the AOJ obtained an in-house opinion regarding the Veteran's service connection claim for skin cancer in April 2017 that indicates the claimed disability is less likely than not the result of service; however, the Board finds the April 2017 opinion inadequate to make an informed decision on the Veteran's claim because the author did not address the Veteran's assertions regarding excessive sun and environmental exposures in service. Similarly, the July 2017 opinion provided by the Veteran's treating physician, T.T., M.D., that links skin cancer to service does not address the points made by the author of the April 2017 opinion. The Board finds a new opinion that fully addresses all the relevant evidence is necessary to make an informed decision of the Veteran's claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Issue a statement of the case regarding service connection for sleep apnea. 2. Schedule the Veteran for an examination regarding his service connection claim for a right knee disability. The selected examiner must provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) the claimed disability is the result of disease or injury in active service; or proximately due to, or aggravated by, a service-connected disability, to include the service-connected cervical and lumbar spine disabilities. If a secondary service connection opinion is necessary, the examiner must address both causation and aggravation separately for the opinion to be deemed adequate. The examiner is advised aggravation means the service-connected disability caused an increase in the severity of the nonservice-connected condition beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. 3. Schedule the Veteran for an examination regarding his service connection claim for COPD. The selected examiner must provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) the claimed disability is the result of disease or injury in active service, to include the environmental exposures due to the Veteran's service as a motor transport operator. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. 4. Schedule the Veteran for an examination regarding his service connection claim for skin cancer. The selected examiner must provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) the claimed disability is the result of disease or injury in active service, to include the excessive sun and environmental exposures due to the Veteran's service as a motor transport operator. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. 5. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case (for the issues other than service connection for sleep apnea). Then, return the case to the Board, if otherwise in order. 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). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs