Citation Nr: 1805058	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  09-01 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a left knee disability, to include as secondary to his right knee disability.

2.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for sleep apnea.  

3.  Entitlement to service connection for sleep apnea.

4.  Entitlement to service connection for hypertension.

5.  Entitlement to a rating in excess of 10 percent for a neck disability.

6.  Entitlement to a rating in excess of 10 percent for a low back disability.


REPRESENTATION

Veteran represented by:  The American Legion

WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. VanValkenburg, Associate Counsel


INTRODUCTION

The Veteran served on periods of active duty for training (ACDUTRA) or active duty from April 1986 to September 1986; January 1988 to January 1990; and January 1991 to May 1991, with additional periods of service in the Marine Corps Reserve.  Among his decorations was the Southwest Asia Service Medal.

These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2005 (left knee) and November 2016 (low back, neck, sleep apnea, and hypertension) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified before the Board regarding his left knee condition on appeal at a July 2010 hearing in front of a Veterans Law Judge who is no longer employed at the Board.  A transcript of the hearing is of record.  The Veteran was notified of such and declined another Board hearing in his November 2017 correspondence.  

In February 2016, the RO denied the Veteran's service connection claim for a left knee condition, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court").  In March 2017, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR).


The issues of service connection for a left knee disability, sleep apnea and hypertension and increased ratings for low back and neck disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  In December 2013, the RO denied the claim of service connection for sleep apnea.  The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the rating decision.

2.  Some of the evidence received since the December 2013 decision raises a reasonable possibility of substantiating the claim for service connection for sleep apnea.


CONCLUSIONS OF LAW

1.  The December 2013 RO rating decision that denied service connection for sleep apnea is final.  38 U.S.C. § 7104, 7105 (2012); 20.1100 (2017).

2.  New and material evidence has been received, and the claim of service connection for sleep apnea is reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claim to reopen

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In determining whether evidence is new and material, the Board does not weigh the evidence or determine whether it is credible, but rather, treats the evidence as credible for the purpose of determining whether to reopen the claim.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In the December 2013 rating decision, the RO denied service connection for the Veteran's sleep apnea, diagnosed in 2009, finding that there was no link between the Veteran's diagnosis and service.  The Veteran did not initiate an appeal or submit new and material evidence within one year of the decision.  Thus, the decision became final.  See 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. § 3.156 (b).

The evidence received since RO's denial on this matter includes newly associated statements from the Veteran and his wife, located within March 2009 VA records and September 2016 buddy statements, which effectively assert that his sleep problems began during active service and have continued since.  See CAPRI records received December 29, 2016 (VA records for the period prior to July 2012 from the Philadelphia VAMC).  This evidence is sufficient to constitute new and material evidence in accordance with 38 U.S.C. § 5108; 38 C.F.R. § 3.156, and the claim for service connection for sleep apnea is reopened.


ORDER

The previously denied claim of service connection for a low back condition is reopened on the basis of new and material evidence.


REMAND

In the March 2017 JMPR, the Board was instructed to afford the Veteran an adequate VA examination and etiological opinion for his left knee condition.  As the recently provided December 2017 VA contract knee examination does not include a medical opinion, a VA medical opinion is required.   

As indicated in the reopening of the sleep apnea claim above, the Veteran reports symptoms of snoring and witnessed apneas dating back to service (in approximately 1989).  Additionally, the Veteran's wife reports that since their marriage in 1995, she observed the Veteran feeling constantly tired after sleeping.  See CAPRI records dated December 29, 2016, pg. 638 of 692 and buddy statement received September 2016.  As the additional lay assertions were associated with the record after the last May 2012 VA examination, an additional VA medical opinion is required.  

The Veteran contends that his currently diagnosed hypertension is related to his conceded in-service exposures to environmental agents.  See notice of disagreement dated December 15, 2016.  Although service treatment records (STRs) fail to show any diagnosis or treatment of hypertension, at least some elevated blood pressure readings are shown during service.  Of note, the Veteran endorsed high or low blood pressure in a January 1988 report of medical history, though the medical professional detailed this was stress related or considered isolated.  As no prior examination has been obtained for the Veteran's claimed hypertension, a VA examination is required.  
Due to evidence of a possible worsening of the Veteran's neck condition since the Veteran's most recent June 2016 VA contract cervical spine examination; an updated VA examination is required.  Significantly, the Veteran submitted private treatment records from February 2017 which reflect symptoms of increased neck pain following a December 2016 rear-end type of motor vehicle injury.  

Finally, initial AOJ consideration of additional evidence and issuance of an updated SSOC for the Veteran's claim of increase for his low back condition is required.  Here, pertinent evidence since the April 2017 supplemental statement of the case has been associated with the claims file, including a December 2017 VA lumber spine examination.

Accordingly, the case is REMANDED for the following action:

1.  Prior to conducting the development in #2-4 below, obtain any updated or outstanding VA treatment records relevant to the Veteran's claims, including those from the Wilmington and Philadelphia VAMC from November 2017.  

2.  Provide the claims file to an appropriate VA examiner to obtain a medical opinion regarding the nature and etiology of the Veteran's left knee disability, to include degenerative arthritis and a strain.  

Based on the medical and lay evidence of record, the examiner is asked to provide an opinion to the following questions:

(a)  whether it is at least as likely as not (50 percent probability or greater) that that the Veteran's left knee conditions onset during, within a year of discharge, or are otherwise etiologically related to service.  The examiner should consider the Veteran's reports of knee pain with various physical activities/training and injuries.  Please explain why or why not.  

(b)  whether it is at least as likely as not (50 percent probability or greater) that that the Veteran's left knee conditions are (i) caused or otherwise etiologically related to his right knee condition; or (ii) worsened beyond the natural progression (aggravated ) by his right knee condition.  Please explain why or why not.  

If aggravation is found, if possible, a baseline level should be provided before any aggravation occurred.  

The opinions must be supported by a clear rationale, discussion of the facts, and medical principles involved.  

3.  Provide the claims file to an appropriate VA examiner to obtain a medical opinion regarding the nature and etiology of the Veteran's sleep apnea.  If the examiner determines that an actual physical examination is necessary, one should be scheduled. 

The examiner should provide an opinion as to whether it is at least as likely as not that the currently diagnosed sleep apnea had its clinical onset during a period of active service or is related to any in-service event, disease, or injury.

In providing this opinion, please consider the Veteran's lay reports of sleep trouble since service such as snoring and his wife's report of his observed tiredness after sleeping from 1995 and beyond.

The opinions must be supported by a clear rationale, discussion of the facts, and medical principles involved.  

4.  Schedule the Veteran for a VA examination to determine the etiology of his hypertension.  All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.

Based on review of the medical and lay evidence of record, the examiner is asked to express an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the currently diagnosed hypertension onset during or is otherwise etiologically related to service, including environmental exposures while serving in the Southwest Asia Theatre of Operations.

The examiner is asked to discuss any elevated blood pressure readings in the Veteran's STRs and any significance they may have on the current diagnosis.

The opinions must be supported by a clear rationale, discussion of the facts, and medical principles involved.  

5.  Schedule the Veteran for a VA examination to determine the current severity of his neck disability.  All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.

Based on a review of the medical and lay evidence of record, all symptoms of the Veteran's neck condition should be identified and all clinical findings should be reported in detail to include the functional impact in consideration of both medical and lay evidence.
6.  Then, readjudicate the issues on appeal.  If any of the benefits sought remain denied, issue a SSOC.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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 (2012).






______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs