Citation Nr: 1804562	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  16-11 331A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a nervous condition.

2.  Entitlement to service connection for a psychiatric disorder.

3.  Entitlement to service connection for multilevel degenerative changes of the spine, bilateral lumbar radiculopathy secondary to severe narrowing of neural foramina by degenerative changes (back disorder).

4.  Entitlement to service connection for bilateral tricompartmental knee arthritis.

5.  Entitlement to service connection for a left foot condition to include hammer toes and degenerative changes.

6.  Entitlement to service connection for sleep apnea.

7.  Entitlement to a total disability rating based upon individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Isaacs, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1982 to January 1985.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In light of the evidence of record and the decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the psychiatric issue on appeal more broadly as service connection for a psychiatric disorder.

Additional evidence was received subsequent to the March 2016 statement of the case, including private medical evidence and lay statements.  The Board finds that the additional evidence is either not pertinent or duplicative to that already of record, for the two claims denied below.  Thus, a remand for a supplemental statement of the case is not necessary for these two claims.  See 38 C.F.R. § 20.1304(c) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for sleep apnea and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ).


FINDINGS OF FACT

1.  A March 1989 rating decision denied service connection for a nervous condition.  The Veteran did not appeal the decision. 

2.  Evidence received since the March 1989 rating decision relates to an unestablished fact necessary to the claim of service connection for a psychiatric disorder.

3.  Resolving reasonable doubt in favor of the Veteran, a current psychiatric disorder diagnosed as depression, is related to service.

4.  The Veteran's current low back, bilateral knee, and left foot disabilities did not have onset in service or within a year thereof, and are not otherwise shown to be service-related by the most probative evidence.


CONCLUSIONS OF LAW

1.  The March 1989 rating decision is final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.302, 20.1103 (2017).

2.  The criteria to reopen the claim of service connection for a psychiatric disorder have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3.  The criteria for service connection for depression have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

4.  The criteria for service connection for a low back disorder have not been met.  38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

5.  The criteria for service connection for bilateral knee disorder have not been met.  38 U.S.C. §§ 1101, 1112, 1131 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

6.  The criteria for service connection for left foot disorder have not been met.  38 U.S.C. §§ 1101, 1112, 1131 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

I.  Reopened Claim

VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran.  38 U.S.C. § 5108.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means 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 United States Court of Appeals for Veterans Claims (Court) held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156 (a) creates a low threshold to reopen, and emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  24 Vet. App. 110, 120-21 (2010).

The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  For purposes of the new and material analysis, the credibility of the evidence submitted thereafter is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).

The Veteran's claim for a psychiatric disorder (formerly claimed as a nervous condition) was initially denied in a March 1989 rating decision as the findings failed to demonstrate treatment in service for a psychiatric disorder or a diagnosed psychosis within one year of discharge.  The Veteran was notified of the decision in April 1989.  The Veteran did not appeal the decision and no new and material evidence was received within a year.  Thus, the March 1989 rating decision became final with regard to a psychiatric disorder.  38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103.

Since March 1989, the Veteran submitted an August 2013 private medical opinion in which the examiner noted that the Veteran's son died while he was in service as a result of a vending machine falling on him in a restaurant in Germany.  This traumatic experience, she stated, caused the Veteran to experience sleep problems, nightmares and flashbacks of the trauma.  She indicated he gets very irritant, anxious, depressed and upset when reminded of the traumatic event.  She stated there is evidence of a link between the in-service stressor and a PTSD or depression diagnosis due to the incident involving the death of his child.

The August 2013 medical opinion is new as it was not previously considered by the RO, and material because it supports that the Veteran has a current psychiatric disorder which had its onset during or is otherwise related to service.  Thus, the new evidence relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran's claim.  Accordingly, the claim of service connection for a psychiatric disorder is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  The Board determines the reopened psychiatric claim can be granted, as described below.

II.  Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Psychiatric Disorder

The Board will now proceed to address the reopened psychiatric disorder claim on the merits.  The Veteran is not prejudiced in the Board proceeding given the beneficial outcome of the reopened claim.  See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010).

The Veteran's service treatment records do not clearly indicate psychiatric complaints or treatment.  However, the record shows a traumatic incident involving the Veteran's four year old son being killed.  A May 1983 service record indicated the Veteran's son died as a result of massive head injuries sustained when a video machine fell on him.  The record noted the child's mother was eating dinner at a restaurant in Weurzburg, Germany when the child pulled on the toggle lever to a video machine, causing it to fall and crush the boy's head.

Thereafter, the Veteran was afforded a February 1989 psychiatric examination opinion during which hr described the trauma due to the sudden loss of his child.  The Veteran was overwhelmed and in December 1987, he evidently attempted to take his own life by cutting his left forearm.  The Veteran described feelings of depression related to the loss of his child and subsequent difficulties getting assistance from the military to help his family.  The examiner indicated the Veteran could not avoid feeling depressed with feelings of helplessness and hopelessness, and with still present suicidal ruminations.  The examiner diagnosed him with dysthymic disorder.

Post-service private treatment records from PPMHC, Inc. show the Veteran sought therapy at a private facility in 1987.  A clinical assessment in February 1988 was atypical depression-rule out personality disorder.

As noted, the Veteran's claim was denied by the RO initially in March 1989.  Following the Veteran's August 2013 claim to reopen, he underwent an August 2013 private examination from Dr. N.O. who provided a positive nexus opinion.  She indicated the Veteran had sleep problems, nightmares and flashbacks due to the traumatic incident involving his son's death.  She noted the child's mother was with the child when he died and told the Veteran what happened thereafter.  She indicated both parents were admitted for psychiatric treatment due to the incident.  The Veteran thereafter experienced crying spells, insomnia, flashbacks, depression and anxiety.  She stated he gets very irritable and becomes upset when reminded of the traumatic event.  She further concluded "there is medical evidence of a link between current symptomatology and the claimed in-service stressor so it is at least as likely as not he is presenting PTSD or a depression problem that is service connected due to time of presentation and incident he had with his child."

The Veteran was afforded a March 2014 VA examination in which the examiner diagnosed the Veteran with anxiety disorder.  The examiner further found that while his reported stressor met the DSM-V stressor criteria for PTSD, his symptoms do not meet the full diagnostic criteria for PTSD under DSM-V criteria.  She further stated he does not fulfill the symptoms criteria for persistent re-experiencing of the traumatic event, persistent avoidance of the stimulus, nor for persistent hyperarousal.  She stated the trauma did not cause impairment in social, occupational or other areas of functioning and there is no change in functional status or in his quality of life due to the in-service trauma.  She noted the Veteran managed his own business and lived a very successful and occupational life with no continuity of symptomatology after service.

With regard to anxiety, the examiner opined that this disorder is not due to or caused by service, and is not otherwise related.  She indicated the single traumatic incident in service was acute, transient and resulted in no residual disability.  Further, she noted, there is no evidence of psychiatric complaints, findings, or treatment within one year of service, or until 2013.  She indicated there is no relationship between the Veteran's service and his mental condition diagnosed around 2013, and no evidence in support that his anxiety disorder was related to service, including the in-service trauma.

An in-service event has been established.  There are, however, competing medical opinions with respect to the actual diagnosis and nexus.  

The August 2013 private physician (an internist) indicated the Veteran had sleep problems, nightmares and flashbacks due to the traumatic incident involving his son's death.  She noted the Veteran gets upset when reminded of the trauma and that there is a link between the in-service stressor and his current psychiatric symptoms.  She indicated that the Veteran has either depression or PTSD due to this event.  In contrast, the March 2014 VA examiner (a psychiatrist) determined that the Veteran has an anxiety disorder, not otherwise specified.  Further, this anxiety disorder is not related to the single traumatic event during service.  She also indicated there is no current diagnosis of PTSD.  

First, the Board finds the 2014 VA examiner's finding that the Veteran does not have PTSD, to outweigh that of the questionable diagnosis of PTSD made by Dr. N.O., who is an internist.  The Board notes that Dr. N.O.'s diagnosis of PTSD appears to have been rendered with some uncertainty, and does not appear to have been based on a detailed psychiatric evaluation.  Further, in light of the VA examiner's specialized training and education as a psychiatrist (and because an in-depth psychiatric clinical assessment was performed), the Board find's the VA examiner's finding of a lack of PTSD more persuasive.

Second, with respect to causal nexus, the Board finds that the evidence is in relative equipoise as to whether the Veteran has a psychiatric disorder related to service.  

Dr. N.O. opined that the Veteran has depression due to his son's tragic death.  She supported her opinion with a rationale.  The VA examiner did not discuss whether the Veteran has depression due to service.  With respect to the anxiety disorder, the VA examiner's rationale is based on an inaccurate factual premise, as the Veteran indeed reported psychiatric symptoms and sought psychiatric treatment shortly after service.  A letter dated in November 1987 from a private mental health therapist shows that the Veteran had recently sought treatment for mental health services.  There are also other references to mental health treatment between 1987 and 1989.  He also underwent a February 1989 VA examination in connection with his original claim seeking service connection for a nervous condition.  At that examination, he reported being overwhelmed, was diagnosed with dysthymic disorder, and even had attempted to take his own life.  The factual inaccuracy renders the VA nexus opinion less probative.  

At the very least, the evidence of nexus is in equipoise with opinions in favor of and against the claim.  As the evidence regarding causal nexus has reached a level of equipoise, the Board resolves reasonable doubt in the Veteran's favor.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  Service connection for depression is warranted.

Low Back Disorder

The Veteran contends that he has a low back disorder related to service.  He asserts that he injured his back jumping out of a helicopter in service.

The Veteran's service treatment records are silent for complaints, treatment or diagnosis of a back disorder.  The Veteran's November 1984 separation physical examination shows his spine was normal and he denied any back problems on his Report of Medical History, which accompanied the examination.  His military occupational specialty shows that he was a materials storage and handling specialist.  

Throughout the appeal the Veteran has received treatment through VA for his back disorder.  February 2005 and November 2006 VA treatment records indicate a past medical history of low back pain.  Further, an August 2007 record indicated the Veteran was experiencing chronic left flank pain radiating to his back.  It noted the pain was exacerbated by movement and when he gets out of the car.

In support of the Veteran's claim for service connection, he underwent an August 2013 private examination.  Dr. N.O. indicated the Veteran has continuous strong back pain which has worsened.  She noted he can no longer tolerate prolonged sitting or standing positions and has problems with getting in and out of bed or a car.  She stated he experiences stiffness and has difficulty lifting heavy objects, bending, squatting or crawling.  She indicated he cannot tolerate prolonged walking or stair climbing and experiences muscle spasms.  Imaging studies, she noted, show degenerative changes in the lumbar area, L5-S1.  She stated the Veteran reported injuring his back jumping out of a helicopter and this kind of impact can cause micro-fractures and also stress on the muscular/skeletal system, leaving a person more prone to injury.  She noted this can lead to more stress on one side of the vertebras and by consequence, could present disc bulging and herniation with degenerative problems.  She concluded it is at least as likely as not that the Veteran's back problems are related to incidents in service.

The Veteran was afforded a March 2014 VA examination in which the examiner diagnosed him with degenerative arthritis of the spine and intervertebral disc syndrome.  The Veteran reported he suffered an in-service fall during training while in Germany, after a helicopter jump.  He noted that in 1990-1991 he developed limited and painful changes in movements and continued recurrent lumbar pain.  He stated he experiences lower extremity numbness and undergoes physical therapy with little improvement.  Further, he has undergone injections with no improvement and experiences constant pain at 6/10.

The March 2014 examiner stated the Veteran's current degenerative spine changes with narrowing of the neural foramen producing radiculopathy are less likely than not related to service.  She indicated the Veteran's service treatment records are silent as to a back injury or treatment and the Veteran did not provide evidence of treatment until 2007, when in an evaluation by his primary physician the Veteran was found to have a history of a left costal trauma at work.  However, she noted "no records available to establish relationship."  She concluded the current back disorder and MRI findings are more likely related to the natural aging process and the degenerative changes produce the narrowing of the foramen with radiculopathy.

The Board notes the Veteran most recently underwent MRI's of the lumbar spine in November 2016 which similarly indicated severe degenerative arthritis in the spine.

Based on the evidence overall, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability.  The most probative medical evidence supports his current back arthritis did not have its onset during service and is not otherwise related.

In reaching such conclusion, the Board accords great probative weight to the March 2014 VA examiner's opinion.  The opinion is highly persuasive as it is predicated on a review of the record, to include prior x-rays and the August 2013 private medical opinion of Dr. N.O.  The opinion proffered considered all of the pertinent evidence of record, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiner's conclusions were clear with well-reasoned medical explanations.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  The March 2014 examiner's opinion supports that the Veteran's spine arthritis is not related to service, did not have its onset in service or within one year of separation from service.

The absence of a claim for a back condition for almost three decades, during which time the Veteran filed service connection claims for several other disorders, gives rise to a negative inference that he did not experience a back disorder during service.  As noted, there are no complaints or treatment for the Veteran's back found in the service treatment records and thus, the preponderance of the evidence demonstrates that the Veteran did not suffer symptoms of back pain during, or shortly after service.

To the extent that the Veteran asserts his back disability had onset during service or is related to service, the Board notes the Veteran is a lay person.  The Board acknowledges that lay persons are competent to report objective signs of illness, such as back pain, and therefore, the Veteran is competent to report that his back pain began in service.  However, there is no indication that he has specialized training in diagnosing or determining the etiology of spine disorders, which in this case is a complex medical question.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Physical examinations, x-ray findings, and other specific findings are needed to properly assess lumbar spine arthritis and the etiology of such requires the opinion of a medical professional.  Thus, the conclusions of the March 2014 physician are more probative than any statement offered by the Veteran.

Moreover, the Board affords more weight to the March 2014 VA opinion than the August 2013 private examiner with regard to the back claim.  Dr. N.O. stated the Veteran reported injuring his back jumping out of a helicopter and this kind of impact can cause stress, micro-fractures and stress on the muscular/skeletal system.  She concluded it is at least as likely as not that the Veteran's back problems are related to service.  However, there is no indication in the service treatment records that the Veteran injured his back jumping out of a helicopter in service.  Further, as noted above, no back complaints are shown in service or shortly after service.  Based on this absence, and the thorough rationale provided by the March 2014 examiner, the Board affords more probative weight with respect to the back claim to the VA examiner's opinion than to the August 2013 physician's opinion.

With regard to a potential continuity of symptomatology, the Board finds it is not established so as to presume a nexus for a chronic disease under 38 C.F.R. § 3.303 (b) for arthritis.  The service treatment records are void of complaints, diagnoses, or treatment, which weighs against arthritis being noted in service.  Further, the record supports the Veteran did not report or receive treatment for his back for more than 20 years following service, despite treatment for several other claims.  Such weighs against evidence of continuity of symptomatology since service.  Consequently, presumptive service connection for lumbar arthritis, to include on the basis of a continuity of symptomatology, is not warranted.  Lumbar spine arthritis is not presumed to have been incurred in service as it is not shown to have manifested to a compensable degree within one year of discharge from service.  38 C.F.R. §§ 3.307, 3.309.

In consideration of this evidence, the Board finds that the Veteran's degenerative arthritis of the spine did not have its onset during and was not otherwise related to service.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of service connection for a low back disability.  As such, that doctrine is not applicable in the instant appeal, and service connection is not warranted.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Bilateral Knee Disorder

The Veteran contends that he has a bilateral knee disorder related to service.  He asserts that he injured his knees jumping out of a helicopter in service.

The Veteran's service treatment records are silent for complaints, treatment or a diagnosis of a knee disorder.  The Veteran's November 1984 separation physical examination shows his lower extremities were normal.  He denied any knee problems on his Report of Medical History, which accompanied the examination.

The Veteran has received treatment through VA for his knee disorder.  He reported pain in his knees in a January 2005 record.  Further, a January 2014 VA treatment record indicated knee arthralgia and osteoarthrosis of the patellofemoral region.

Following the Veteran's August 2013 claim, the Veteran reported to the August 2013 private examiner bilateral knee pain, instability and recurrent episodes of "locking."  As indicated, he reported injuring his knees jumping out of a helicopter.  The examiner indicated clicking and catching in his knees with his left knee affected more severely than his right.  She reported he has difficulty with prolonged walking or climbing.  She concluded it is as likely as not that the Veteran's knee problems are related to incidents in service.

A March 2014 VA examiner indicated a diagnosis of tricompartmental knee arthritis supported by x-rays and MRI's.  The Veteran reported his civil work required frequent squatting and he had bilateral knee pain since 1998.  He reported he developed pain and was treated with physical therapy with mild improvement to the pain.  He noted he is unable to perform kneeling or squatting.

The March 2014 examiner indicated the current bilateral knee disorder is more likely than not related to the natural aging process than to the Veteran's service.  She stated his service treatment records are silent of any knee complaints or treatment and the first time he claims knee symptoms was in approximately 2010.  Thus, she concluded, his knee disorder is not related to service.

Based on the evidence overall, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for bilateral knee disorder.  The most probative medical evidence supports his current knee arthritis did not have its onset during service and is not otherwise related.

In reaching such conclusion, the Board finds the March 2014 examiner's opinion the most probative medical evidence of record.  The opinion proffered considered all of the pertinent evidence of record, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiner offered clear conclusions with supporting data, as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez at 295.  Further, the Board affords more weight to the March 2014 VA opinion than to the August 2013 private examiner, with regard to the bilateral knees claim.  Dr. N.O. stated the Veteran reported injuring his knees jumping out of a helicopter and, as noted above, there is no evidence of such injury in the record.  Further, his claim for a bilateral knee disability was not for approximately twenty eight years following service.  Thus, overall, the Board affords more weight to the March 2014 VA opinion than the August 2013 physician's opinion.

To the extent that the Veteran contends his knee disability is related to service, the Board notes the Veteran is a lay person.  While the Board is sympathetic to the Veteran's knee symptoms, an adequate opinion regarding the etiology of knee arthritis requires the opinion of a medical professional, not a lay person.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Thus, the conclusions of the March 2014 physician are more probative than any statement offered by the Veteran.

The Board notes a continuity of symptomatology of knee arthritis since service has also not been shown.  As noted above, there were no complaints or treatment of the knees in service or the one year presumptive period after service, even though there were significant complaints and treatment for other conditions during service and in the years shortly after.  The knee claim was not submitted until August 2013, and consequently, presumptive service connection for arthritis of the knees, to include on the basis of a continuity of symptomatology, is not warranted.  Knee arthritis is not presumed to have been incurred in service as it is not shown to have manifested to a compensable degree within one year of discharge from service.  38 C.F.R. §§ 3.307, 3.309.

In consideration of this evidence, the Board finds that the Veteran's bilateral knee arthritis did not have its onset during and was not otherwise related to service.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of service connection for bilateral knee disorder.  As such, that doctrine is not applicable in the instant appeal, and service connection is not warranted.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Left Foot Disability, to include Hammertoes and Degenerative Changes

Service treatment records contain no evidence of hammertoes or a left foot injury.  The Veteran's November 1984 separation physical examination shows his lower extremities were normal and he denied any skin or foot problems on his Report of Medical History, which accompanied the examination.

In August 2013, a private physician indicated the Veteran has a left toe nail problem that was caused when a military vehicle ran over the top of his left foot.  She stated it is as likely as not that his left foot disorder is related to the in-service injury.

At a March 2014 VA examination, the Veteran reported that while in a warehouse, his left foot was injured when a "tank" passed over his foot.  A VA examiner diagnosed hammer toes and left foot crush injury without post traumatic changes.  The examiner found the current foot findings were more likely related to the natural aging process and there is no evidence of posttraumatic changes.  She stated therefore, it is less likely than not that the left foot disorders are related to service and the great toe nail deformity can be related to unicomycosis present in all toes.

After careful consideration, the Board finds that service connection for a left foot disability.  Initially, there is no material dispute that the Veteran is currently diagnosed with a left foot disability.  Therefore, the first requirement to establish service connection, evidence of a current disability, has been met as to this claim.  Nonetheless, the claim is denied because there is no credible evidence of the in-service injury and lack of nexus.  

A left foot injury is not reflected in the service records, and the Veteran's statements of this injury cannot be found credible evidence of the injury for multiple reasons.  First, his statements have been inconsistent.  The Board notes that in 1989 when seeking service connection for a left leg disability, the Veteran reported that a forklift ran over his leg.  The Veteran now asserts that a tank ran over his foot.  Although this is consistent with his general testimony that he suffered some type of injury to his left lower extremity, it conflicts with his prior report of the manner and circumstances of a left lower extremity injury.  This inconsistency shows that the Veteran is not a reliable historian.  

More generally, the Veteran's medical records also tend to confirm that he is not credible.  The Board notes that there is no credible evidence of a left foot injury during service.  The Board finds it unreasonable that an individual would have sustained a traumatic crush injury from a tank having run over their foot and not have received treatment for the same.  There no administrative documents showing that he was put on profile.  Administrative profiles for restricted or light duty after an injury are routinely and regularly kept with the service treatment records.  Moreover, at his November 1984 separation examination, the Veteran affirmatively denied foot trouble.  This directly contradicts, by affirmative evidence, his current assertions.  The Board finds the separation examination to be the more accurate reflect of his condition during service because it was contemporaneous to the event and because there is no indication at that time that he was attempting to misrepresent his history, as is true now.  See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7); Caluza, 7 Vet. App. at 511.  Thus, overall, the service records tend to indicate that the left foot injury did not occur, which further undermines the reliability of the Veteran's current assertions.  

Further, there is no indication of complaints or treatment for a left foot or toe injury and problems for over 20 years after service.

With respect to the 2013 favorable medical opinion, the Board notes that the factual foundation of this opinion was entirely predicated on the Veteran's report that an injury occurred in service and on the reported severity of that injury, which the Board does not find credible.  Therefore, this doctor's medical opinion has little probative value and is not sufficiently probative or persuasive to indicate a nexus to service.  See Nieves-Rodriguez, 22 Vet. App. at 304; Robinette v. Brown, 8 Vet. App. 69, 77 (1995).  The VA examiner's opinion is not favorable with respect to nexus and there is no other credible, competent and favorable nexus evidence of record.  Accordingly, a nexus to service is not established.  

In conclusion, the weight of the most credible and competent evidence establishes that the current left foot condition is unlikely to have resulted from an in-service injury.  For this reason, the evidence is not in equipoise all material elements of the claim.  Therefore, the appeal cannot be granted.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287.


ORDER

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

New and material evidence having been received, the claim to reopen service connection for a psychiatric disorder is reopened; and service connection for a psychiatric disorder is granted.

Service connection for a low back disability is denied.

Service connection for bilateral knee disability is denied.

Service connection for a left foot disability is denied.


REMAND

The Veteran contends his sleep apnea had its onset during service.  He underwent a February 2014 sleep study in which he was found to have diagnosed obstructive sleep apnea.

While the Veteran's service treatment records are negative for a diagnosis of sleep apnea, an April 1984 record indicated paroxysmal nocturnal dyspnea and shortness of breath, relieved when he is sitting up.  He was found to have mild obstructive airway disease on spirometry.

Thus, there is a current diagnosis of obstructive sleep apnea and at least an indication that breathing, along with sleep difficulties had their onset in service.  As the Veteran has not been afforded a VA examination for this claim, the Board finds that the low threshold of McLendon has been met.  Thus, he must be provided an examination to determine the etiology of his sleep apnea.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

The claim for a TDIU must also be remanded.  The current Board decision granted service connection for a psychiatric disorder and remanded the Veteran's claims for service connection for sleep apnea.  Thus, the claim for a TDIU is intertwined with these claims and will also be remanded.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his sleep apnea.  All necessary tests and studies related to the claim should be conducted.

The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current sleep apnea had its onset during, or was otherwise related to, service.

A complete rationale must be provided for all opinions expressed.

2. Finally, readjudicate the issue remaining on appeal, to include TDIU.  If either of the benefits sought remain denied, issue a supplemental statement of the case and return 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).

These claims must be afforded expeditious treatment.  The law requires that all claims remanded by the Board 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.




______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs