Citation Nr: 1805589	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  15-43 681	)	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 entitlement to service connection for a bilateral lower extremity condition, to include radiculopathy and neuropathy, and if so, whether the claim may be allowed.

2. Entitlement to service connection for obstructive sleep apnea, to include as due to exposure to chemical and environmental hazards during the Gulf War.
 
3. Entitlement to service connection for bronchial asthma, to include as due to exposure to chemical and environmental hazards during the Gulf War.

4. Entitlement to service connection for a left shoulder condition.
 
 
REPRESENTATION

Appellant represented by:	Robert J. Levine, Attorney

ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran had active duty service from September 1988 to May 1994, including service in Southwest Asia in support of Gulf War operations. 

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.
 
The Board notes that in an April 2017 correspondence, the Veteran timely appealed a rating decision from that same month denying entitlement to increased ratings for depressive disorder, degenerative disc disease of the lumbar spine, left and right knee patellar tendinitis, mild duodenitis and entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Generally, where, as here, no statement of the case has been issued, the Board is required to remand rather than refer the appealed issue. See Manlincon v. West, 12 Vet. App. 238 (1999). In this case, however, the Board's review of the Veterans Appeals Control and Locator System (VACOLS) indicates that the RO is already taking action on these issues. The Board further notes that the Veteran's representative submitted a June 2017 brief on the issues currently before the Board, and that brief included an argument regarding TDIU. Accordingly, at this juncture, the Board will decline jurisdiction over these issues.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 

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 obstructive sleep apnea and bronchial asthma, both claimed as to include as due to exposure to chemical and environmental hazards during the Gulf War, as well as the issue of entitlement to service connection for a left shoulder condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In a decision dated July 2012, the Board denied the Veteran's claim of service connection for a bilateral lower extremity condition, to include radiculopathy and neuropathy. The disorder was held not to have been clinically established or diagnosed. The Veteran was notified of the decision and did not appeal.

2. Evidence added to the record since the July 2012 Board decision is cumulative or redundant, does not cure a prior evidentiary defect, and does not raise a reasonable possibility of substantiating the Veteran's claim.


CONCLUSIONS OF LAW

1. The July 2012 Board decision denying service connection for a bilateral lower extremity condition, to include radiculopathy and neuropathy, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).
 
2. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a bilateral lower extremity condition, to include radiculopathy and neuropathy. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159, and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the decision on appeal.

With regard to the pending claim, examinations are not necessary if no new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). As will be discussed below, the Veteran has not submitted, and VA has not otherwise received, evidence sufficient to reopen the pending claim. Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet.

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

New and Material Evidence

Generally, a claim which has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An 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 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. 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000).

In deciding whether new and material evidence has been received, the Board looks to the evidence received since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

This appeal arises out of the Veteran's contention that his claimed bilateral lower extremity condition, to include radiculopathy and neuropathy, is related to his military service.

The Board's July 2012 decision considered the Veteran's service and VA  treatment records, as well as VA examinations in August 2008 and April 2011 that revealed no evidence of radiculopathy or peripheral neuropathy of either lower extremity. It was explained that this was not a definitive diagnosis and the evidence failed to demonstrate treatment and/or diagnosis of a bilateral lower extremity disorder in the years since the Veteran's service. 

The Veteran was notified, did not appeal the decision, and timely new and material evidence was not received. Thus, the July 2012 Board decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 

Subsequently, a number of additional records were added to the Veteran's electronic claims file. This evidence consists of the Veteran's private treatment records from several providers, additional post-service VA treatment records, and some Social Security Administration records. 

A review of these records does not show a clinical confirmed diagnosis of a bilateral lower extremity condition, to include radiculopathy and neuropathy. Moreover, in a July 2017 brief, the Veteran's representative did not advance any argument as to a bilateral lower extremity condition. Instead, the representative focused on the issues being addressed in the remand section below. 

Thus, the Board has determined that new and material evidence to reopen the claim of entitlement to service connection for a bilateral lower extremity condition, to include radiculopathy and neuropathy has not been received. While new evidence has been received, no material evidence has been received to show a clinically confirmed diagnosis which is linked to military service. In other words, the evidence fails to show that a bilateral lower extremity condition was incurred in or caused by military service or that a current confirmed clinical diagnosis exists.  

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107.


ORDER

New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral lower extremity condition, to include radiculopathy and neuropathy, and the claim to reopen is denied.

REMAND

Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, remand is required to receive any outstanding treatment records and to provide new VA examinations. 

The Veteran seeks entitlement to service connection for obstructive sleep apnea and bronchial asthma, both claimed to include as due to exposure to chemical and environmental hazards during the Gulf War, as well as entitlement to service connection for a left shoulder condition.

The Veteran's most recent and pertinent VA examinations for obstructive sleep apnea and bronchial asthma occurred in March 2013. Notably, the March 2013 examiner suggested that the Veteran's sleep disorder is "an inherent part" of the Veteran's already service-connected major depressive disorder. The Board observes that the Veteran has never received a VA examination for his claimed left shoulder condition.

The Veteran and his representative have since challenged the adequacy of the March 2013 VA examinations for obstructive sleep apnea and bronchial asthma. Additionally, the Veteran has submitted medical evidence wherein his private physician suggested that the Veteran's obstructive sleep apnea and bronchial asthma were related to his military service and/or exposure to chemical and environmental hazards. In light of the time that has elapsed since the previous VA examinations and additional evidence received, the Board finds that new VA examinations for obstructive sleep apnea and bronchial asthma are warranted. 

As to his claim of entitlement to service connection for a left shoulder condition, the Veteran has submitted additional medical evidence from 2012 that includes a diagnosis of "unspecified shoulder bursa or tendon disorder" and additional evidence suggesting the Veteran suffered a rotator cuff tear in 2014, and he has complained of left shoulder problems since discharge. Therefore, the Board finds that VA's duty to assist has been triggered and it must provide a VA examination for his claimed left shoulder condition. See McClendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board observes that the Veteran has received some prior VA treatment for his claimed conditions, but it is unclear if he has received additional treatment. Therefore, VA should obtain all relevant treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). 

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. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran's electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's Virtual VA and VBMS claims file.

2. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for a VA examination(s) with a VA examiner(s) of appropriate expertise to determine the nature and etiology of his obstructive sleep apnea and bronchial asthma, both claimed as to include as due to exposure to chemical and environmental hazards during the Gulf War, as well the nature and etiology of his claimed left shoulder condition. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed.

The examiner(s) should then opine whether the Veteran's obstructive sleep apnea, bronchial asthma, and claimed left shoulder condition are at least as likely as not (50 percent or greater probability) to have begun in or are otherwise the result of military service.

The examiner(s) should also provide an opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) that obstructive sleep apnea and bronchial asthma are due to exposure to chemical and environmental hazards during the Gulf War. 

The examiner(s) should specifically address the Veteran's contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology, including the medical reports from his private doctors and his claimed exposure to chemical and environmental hazards. The examiner should also address and reconcile any previous examination reports, as well as any other pertinent evidence of record, as necessary. 

3. After the development requested has been completed, the AOJ should review any examination reports or opinions to ensure that they are in complete compliance with the directives of this REMAND. The AOJ must ensure that the examiner documented consideration of the entire claims file and any relevant records in Virtual VA and VBMS. If any report is deficient in any manner, the AOJ must implement corrective procedures at once.
 
4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative, if applicable, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 

The appellant 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. §§ 5109B, 7112 (2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs