Citation Nr: 1805948 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-20 448 ) 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 sufficient to reopen a claim for entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for obstructive sleep apnea. 3. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for left heel spur. 4. Entitlement to service connection for left heel spur. 5. Entitlement to service connection for right heel spur, to include as secondary to the service-connected fracture of right distal tibia-fibula. 6. Entitlement to a disability rating in excess of 10 percent for hypertension. 7. Entitlement to a disability rating in excess of 10 percent for fracture of right distal tibia-fibula. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from August 1978 to December 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this case in July 2015 for further development. The Veteran testified at an October 2014 videoconference hearing before a Veterans Law Judge (VLJ). A transcript of this hearing is of record. In October 2017, the Veteran was notified that the VLJ who held the October 2014 hearing was no longer with the Board and of his right to request another Board hearing. The Veteran was also notified that if he did not respond within thirty days from the date of the October 2017 letter, then the Board would assume that he did not want another hearing. The Veteran has not responded to this letter. As such, the Board may proceed to a decision. In an October 2016 substantive appeal, the Veteran requested a videoconference hearing with regard to the issues of whether new and material has been received sufficient to reopen a claim for entitlement to service connection for obstructive sleep apnea and left heel spur are before the Board. He later withdrew his request for a videoconference hearing in a December 2017 statement. The issues of entitlement to a disability rating in excess of 10 percent for hypertension and for fracture of right distal tibia-fibula, and entitlement to 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. In a September 2002 rating decision, the RO denied a claim for entitlement to service connection for obstructive sleep apnea; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 2. The evidence received since the final September 2002 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for obstructive sleep apnea. 3. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed obstructive sleep apnea had its onset during active service. 4. In a May 2007 rating decision, the RO denied a claim for entitlement to service connection for left heel spur; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 5. The evidence received since the final May 2007 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for left heel spur. 6. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed left heel spur is due to his active service. 7. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed right heel spur is due to his active service. CONCLUSIONS OF LAW 1. The September 2002 rating decision that denied the claim for service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria to establish entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The May 2007 rating decision that denied the claim for service connection for left heel spur is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 5. New and material evidence has been received to reopen the claim for entitlement to service connection for left heel spur. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 6. The criteria to establish entitlement to service connection for left heel spur have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 7. The criteria to establish entitlement to service connection for right heel spur have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Given the Board's favorable disposition of the petitions to reopen the claims for service connection for obstructive sleep apnea and left heel spur, and claims for service connection for obstructive sleep apnea, left heel spur, and right heel spur, the Board finds that all notification and development action needed to fairly adjudicate these parts of the appeal have been accomplished. New and Material Evidence Laws and Regulations Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing an NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c)(2012); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a)(2017). 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 means existing evidence not previously submitted to agency decisionmakers. 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) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. Additionally, 38 C.F.R. § 3.156(b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal. See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161 - 62 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Obstructive Sleep Apnea The Veteran's original claim for service connection for obstructive sleep apnea was denied in a September 2002 rating decision because the evidence did not show that the Veteran's currently diagnosed obstructive sleep apnea had been permanently aggravated by his active duty service. The RO found that the Veteran's obstructive sleep apnea had existed since adolescence. That decision is final as the Veteran did not file a NOD and new and material evidence pertaining to the Veteran's claim was not received within one year of the September 2002 rating decision or the November 2002 notification letter. Since the Veteran's prior final denial in September 2002, the record includes additional VA treatment records received in April and July 2014, and a December 2017 private medical opinion from T. Clark, M.D. All of this evidence indicates that the Veteran did not have obstructive sleep apnea prior to service. Additionally, in the December 2017 opinion, T. Clark, M.D. opined that it is more likely than not that the Veteran's obstructive sleep apnea began during his active duty military service. See December 2017 private opinion. The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The additional service treatment records, VA treatment records received in April and July 2014, and December 2017 private medical opinion are presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for obstructive sleep apnea is reopened. Left Heel Spur The Veteran's original claim for service connection for left heel spur was denied in a May 2007 rating decision because the evidence did not show that there was a nexus between any currently diagnosed left heel spur and his period of active duty service. That decision is final as the Veteran did not file a NOD and new and material evidence pertaining to the Veteran's claim was not received within one year of the May 2007 rating decision or the June 2007 notification letter. Since the Veteran's prior final denial in May 2007, the record includes additional VA treatment records received in April and July 2014, and a December 2017 private medical opinion from T. Clark, M.D. All of this evidence indicates that the Veteran's left heel spur was caused by his active duty service. In the December 2017 opinion, T. Clark, M.D. opined that it is more likely than not that the Veteran's left heel spur was caused by his active duty military service. See December 2017 private opinion. The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. The additional service treatment records, VA treatment records received in April and July 2014, and December 2017 private medical opinion are presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for left heel spur is reopened. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d)(2017). A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304(b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. Id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012)(observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). VA may find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306); but see Horn, 25 Vet. App. at 238 (emphasizing that "neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111"). If this burden is met, then the veteran is not entitled to service connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the preexisting condition was not aggravated by active service, then the presumption has not been rebutted. Id. at 1094. In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322); see also id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question preexisted active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. See id. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003)(citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Obstructive Sleep Apnea The Veteran is seeking service connection for obstructive sleep apnea. Post-service treatment records, to include a February 2014 VA treatment record and the December 2017 private medical opinion, show that the Veteran is currently diagnosed with obstructive sleep apnea. Now that it has been established that the Veteran has a current diagnosis for obstructive sleep apnea, the Board must address whether the presumption of soundness applies in this case. As a condition of sleep apnea was not noted at the July 1978 enlistment examination, the presumption of soundness applies. As noted above, in the September 2002 rating decision, the RO found that the Veteran's obstructive sleep apnea existed prior to service. This finding was based on an April 1997 medical board report, which was, in turn, based on a March 1997 medical board evaluation. In the March 1997 medical board evaluation, the physician noted that the Veteran started snoring as an adolescent. However, in the December 2017 private opinion, T. Clark, M.D. opined that the Veteran's obstructive sleep apnea did not exist prior to service and she directly addressed the April 1997 medical board report. Specifically, she stated that a "reported history of snoring in no way diagnoses sleep apnea or confirms a diagnosis of any kind of chronic sleep disorder." See December 2017 private opinion. She also detailed a number of temporary medical conditions that could have caused the Veteran's adolescent snoring. As such, the Board does not find there is clear and unmistakable evidence that the disability existed prior to service. Hence, the Veteran is presumed sound as to his sleep apnea disability and the claim proceeds on a direct service incurrence basis. Service treatment records reveal that the Veteran's obstructive sleep apnea began during his active duty service. The evidence shows that the Veteran's sleep apnea first manifested in November 1989, which is evidenced by a November 1989 record which notes difficulties sleeping and probable sleep apnea. He was first diagnosed with obstructive sleep apnea in October 1996 and began nasal CPAP therapy in November 1996. In a December 2017 private opinion, T. Clark, M.D. opined that it is more likely than not that the Veteran's obstructive sleep apnea began during his active service. In her rationale, the physician noted the 1989 sleeping difficulties, the 1996 sleep study and diagnosis of obstructive sleep apnea, the 1997, 1998, and 1999 oromaxillofacial surgeries to address the sleep apnea, and the Veteran's current use of a CPAP machine. Based on a careful review of all of the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for obstructive sleep apnea warranted. T. Clark, M.D.'s private opinion is the most probative evidence of record as to the etiology of the Veteran's currently diagnosed obstructive sleep apnea. Taking into account service treatment records showing that the Veteran was first diagnosed with obstructive sleep apnea in service and T. Clark, M.D.'s opinion providing a link between the Veteran's obstructive sleep apnea and his military service, the Board finds that the pertinent evidence supports the conclusion that the Veteran's obstructive sleep apnea is related to active service. There is no evidence to the contrary and the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In summary, the evidence is at least in equipoise that the Veteran's currently diagnosed obstructive sleep apnea had its onset during his active duty service. Accordingly, the Veteran is afforded the benefit of the doubt; therefore, service connection is granted. See 38 U.S.C. § 5107(b)(2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right and Left Heel Spurs The Veteran is seeking service connection for right and left heel spurs. Post-service treatment records, to include November 2006 and September 2011 VA treatment records and the December 2017 private medical opinion, show that the Veteran is currently diagnosed with bilateral heel spurs. In a December 2017 private opinion, T. Clark, M.D. opined that it is more likely than not that the Veteran's bilateral heel spurs are related to his active military service. In her rationale, the physician stated that heel spurs can be caused by repetitive trauma of the Achilles tendon or the plantar fascia. She found that the Veteran experienced such repetitive trauma during his in-service parachute jumps. T. Clark, M.D. highlighted the fact that the Veteran fractured his right ankle after a parachute landing and a December 1994 service treatment record in which the Veteran was diagnosed with left heel pain secondary to repetitive trauma. She also considered the Veteran's October 2014 hearing testimony where he reported that he noticed painful bony protrusions that were later diagnosed as heel spurs during service. Service treatment records reflect that the Veteran fractured his ankle in 1980, but do not reveal the cause of his fracture, but an April 2011 VA examination noted that he fractured his right ankle during an in-service parachute landing in 1980. Additionally, service treatment records show that the Veteran was an aviation survival man/dropmaster during service, which would require parachute jumps. Specifically, a May 1980 service treatment record shows that the Veteran injured his right shoulder during a parachute landing fall. Based on a careful review of all of the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for right and left heel spurs are warranted. T. Clark, M.D.'s private opinion is the most probative evidence of record as to the etiology of the Veteran's currently diagnosed bilateral heel spurs. Taking into account service treatment records that show that the Veteran performed parachute jumps and T. Clark, M.D.'s opinion providing a link between the Veteran's bilateral heel spurs and his military service, the Board finds that the pertinent evidence supports the conclusion that the Veteran's right and left heel spurs are related to active service. There is no evidence to the contrary and the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano, 17 Vet. App. at 312 (2003). In summary, the evidence is at least in equipoise that the Veteran's currently diagnosed right and left heel spurs are caused by his active service. Accordingly, the Veteran is afforded the benefit of the doubt; therefore, service connection is granted. See 38 U.S.C. § 5107(b)(2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has been received, the claim for service connection for left heel spur is reopened. Entitlement to service connection for left heel spur is granted As new and material evidence has been received, the claim for service connection for obstructive sleep apnea is reopened. Entitlement to service connection for obstructive sleep apnea is granted Entitlement to service connection for right heel spur, to include as secondary to the service-connected fracture of right distal tibia-fibula is granted. REMAND In its July 2015 remand, the Board instructed the RO to obtain outstanding relevant VA treatment records, to include those from March 2014 to present, and then schedule VA examinations to determine the current nature and severity of his service connected fracture of the right distal tibia-fibula, hypertension, and TDIU. The record shows that the RO did not attempt to obtain outstanding relevant VA treatment records from March 2014 to present. Additionally, VA examinations to determine the current nature and severity of fracture of the right distal tibia-fibula and the functional impairment that results from each of the Veteran's other service-connected disabilities were not obtained. Hence, another remand is required. The Board also finds that the claim of entitlement to TDIU is inextricably intertwined with the pending claims for higher disability ratings. The appropriate remedy for an inextricably intertwined issue is to remand it pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the record shows that there are two pages in the service treatment records that are in Spanish, but have not been translated. Accordingly, the case is REMANDED for the following actions: 1. Obtain translations of service treatment records in Spanish. 2. Obtain any all outstanding pertinent VA and/or private treatment records, to include those from his private provider for treatment of hypertension and VA treatment records from March 2014 to present. 3. After completing the above, to the extent possible, schedule the Veteran for VA examinations to determine the current severity of his service-connected fracture of the right distal tibia-fibula and hypertension by an appropriately qualified examiner. Provide the claims file, including a copy of this REMAND, to the examiner for review. All necessary tests and studies should be accomplished and all clinical findings reported in detail. 4. Obtain a VA medical examination and opinion to determine the impact of the Veteran's service-connected disabilities on the Veteran's ability to maintain gainful employment. The examiner should comment on the functional impairment caused solely by the Veteran's service-connected disabilities (bursitis of the right shoulder, right knee strain, fracture of the left great toe, left hamstring muscle spasms, sebaceous cyst removals form the back, pityriasis rosea of the groin, hypertension, fracture of the right distal tibia-fibula, bilateral heel spurs, and obstructive sleep apnea) relative to his ability to engage in substantially gainful employment. In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected. The VA examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. The VA examiner must acknowledge and take into account the Veteran's education, training, and work history. Neither age nor nonservice-connected disabilities should be considered or mentioned. A clear rationale for all findings should be provided. 5. After ensuring compliance with the development requested above, readjudicate the claims. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs