Citation Nr: 18142793 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-29 839 DATE: October 17, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea and service connection for sleep apnea is denied. The petition to reopen the claim of entitlement to service connection for hepatitis C is denied. REMANDED Service connection for a back condition, is remanded. Entitlement to a compensable evaluation for limitation of motion (extension) of the left knee with altered gait prior to June 23, 2016; a rating in excess of 10 percent for degenerative arthritis of the left knee with altered gait prior to June 23, 2016, and a rating in excess of 30 percent for left knee status post total knee replacement (TKR) (previously rated as degenerative arthritis and limitation of motion (extension) of the left knee with altered gait) from August 1, 2017 (following a period of a temporary 100 percent rating from June 23, 2016 to August 1, 2017), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A February 2012 rating decision denied service connection for sleep apnea; the Veteran did not perfect an appeal. 2. Evidence submitted since the February 2012 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim. 3. The Veteran’s sleep apnea is neither proximately due to nor aggravated beyond its natural progression by his service-connected bilateral knee disabilities, and is not otherwise related to an in-service injury, event, or disease. 4. An October 2005 rating decision denied service connection for hepatitis C; the Veteran did not perfect an appeal. 5. The additional evidence received since the October 2005 rating decision pertaining to hepatitis C is either cumulative or redundant of evidence already of record and considered in that decision, and does not raise a reasonable possibility of substantiating the claim for service connection for sleep apnea. CONCLUSIONS OF LAW 1. The February 2012 rating decision, in which the Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for sleep apnea, is final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 2. New and material evidence has been received since the February 2012 rating decision; thus, the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. The October 2005 rating decision, in which the RO denied service connection for hepatitis C, is final. 38 U.S.C. § 7104(b). 5. New and material evidence has not been received since the October 2005 rating decision for hepatitis C; thus, the claim for service connection for hepatitis C is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1977 to November 1980. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. In February 2012, the RO denied service connection for sleep apnea. The February 2012 rating decision, in which the RO denied service connection for sleep apnea, is final. 38 U.S.C. § 7104(b). The basis for the denial was that there was no evidence that the condition was incurred in or caused by active duty service. Since the last prior final decision, evidence has been added to the record. The additional evidence of record consists of medical opinions. In a May 2014 statement, Dr. G.M. opined that the Veteran was unable to maintain a healthy weight due to knee disabilities stemming from his service. Dr. G.M. found the knee disabilities caused the Veteran to develop weight gain and sleep apnea. He opined that sleep apnea was secondary to the Veteran’s service-connected knee conditions. The reason for the prior final denial was that there was no evidence establishing the Veteran’s sleep apnea was caused by active duty service. In other words, the nexus element was missing. This recent evidence suggests that the Veteran’s sleep apnea was caused by or related to his service-connected knee disabilities. In this case, the medical evidence suggests a basis for service connection. That evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the February 2012 rating decision. Therefore, the claim of entitlement to service connection for sleep apnea is reopened. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. In an October 2005 rating decision, the RO denied service connection for hepatitis C on the basis that there was no evidence that hepatitis C was incurred in or caused by his military service. A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO’s October 2005 rating decision is final. 38 U.S.C. § 7105. Since the last prior final decision, evidence has been added to the record. The additional evidence of record consists of medical evidence. In May 2007, the Veteran had a hepatitis screen, which yielded a negative finding. A January 2008 VA primary care note and July 2011 emergency room note diagnosed the Veteran with hepatitis C by history, but found that he did not have a current diagnosis of hepatitis C. In November 2014, the Veteran requested that his VA health care physician write a letter noting that he had hepatitis C and there was no known cure. Later in November 2014, the VA physician noted that hepatitis C is a treatable disease, but the Veteran did not have a current diagnosis of hepatitis C. The additional medical evidence that pertains to the Veteran’s hepatitis C is cumulative, and thus, not new, as it merely shows the continued existence of a history of hepatitis C after his active duty service but no current diagnosis of hepatitis C. The evidence is not material because the evidence could not reasonably substantiate the claim were it to be reopened as the evidence does not have any tendency to show hepatitis C in related to the Veteran’s service. There continues to be absent from the record any new, competent, and credible evidence suggesting that he has a current diagnosis of hepatitis C, that hepatitis C developed in service, or is otherwise related to service. See, e.g., 38 U.S.C. § 1131; 38 C.F.R. § 3.303. None of the additional evidence, even when considered in combination with the other evidence of record, is new and material. Thus, this evidence does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating this claim. The prior denial is final, and the claim for service connection for hepatitis C is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to secondary service connection, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (a). Moreover, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for sleep apnea secondary to service-connected status post total right knee arthroplasty and left total knee replacement. The Veteran contends that his service-connected knee disabilities contributed to the development of obesity and caused or aggravated his sleep apnea. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence is against finding that the Veteran’s sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected knee disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The record contains conflicting medical opinions regarding whether the Veteran’s sleep apnea is at least as likely as not related to an in-service injury, event, or disease, including due to or the result of, or aggravated beyond its natural progression by his service-connected knee disabilities. The September 2014 VA examiner opined that it was not. The rationale was that weight gain and obesity is a common problem in society, which is multifactorial due to lack of energy balance when intake (calories) exceeds energy out (physical activity and calories needed for homeostatic body function). Other factors that can affect weight gain include genetics, medicines, health conditions such as hypothyroid, age, and mental health issues. The Veteran’s service-connected knee disabilities impact his level of activity, but as noted above there are multiple other factors that cause weight gain. The private physician did not acknowledge the complicated causes of obesity in today’s society as he noted that the Veteran’s cause of obesity and sleep apnea was only his service-connected knee disabilities. The VA examiner opined that being unable to engage in physical activity alone is less likely as not is the direct cause of the Veteran’s weight gain/obesity. As such, his sleep apnea is less likely as not due to his service-connected knee condition. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Private practitioner G.M. opined that there is a relationship between sleep apnea and service-connected disability in May 2014. The rationale was that the Veteran was unable to maintain a healthy weight due to his service-connected knee disabilities. Dr. G.M. found the knee disabilities caused the Veteran to develop weight gain and sleep apnea. He opined that sleep apnea was secondary to the Veteran’s service-connected knee conditions. This opinion is, however, less probative than the VA examiner’s opinion. The private medical evidence provides no rationale for the expressed opinions nor does he point to any specific facts in the case to support his opinion. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Consequently, the Board gives the greater probative weight to the September 2014 VA examiner’s opinion that is accurate, provides a full explanation and rationale for the opinion, and is based on current scientific research. While the Veteran believes his sleep apnea is related to his service-connected knee disabilities, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the September 2014 VA examination.   REASONS FOR REMAND 4. Entitlement to service connection for a back condition is remanded. The Veteran contends that his current back pain is related to an in-service injury. Service treatment records (STRs) noted that the Veteran had low back pain in September 1978 and August 1979. The Veteran reported a 10-year history of back pain in September 1978. The Veteran denied having recurrent back pain during his August 1980 separation examination. In April 2015, the Veteran reported back pain and that he believed it was related to his in-service back pain. Lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board cannot make a fully-informed decision on the issue of a back condition because no VA examiner has opined whether the Veteran’s back pain was caused by the claimed in-service injury. 5. Entitlement to higher ratings for service-connected left knee is remanded. While the record contains an September 2017 Disability Benefits Questionnaire regarding the Veteran’s knee and lower leg conditions, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination did not contain nonweight bearing and passive range of motion measurements for the Veteran’s knee conditions. In light of the foregoing, the Veteran must be afforded a VA examination which fully complies with Correia. The examiner must test for pain in both active and passive motion, as well as in weight-bearing and nonweight bearing. 6. Entitlement to a TDIU is remanded. The Veteran claims entitlement to a total disability evaluation based on individual unemployability. Consideration of entitlement to a TDIU is dependent upon the impact of service-connected disabilities on a Veteran’s ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the currently pending claims discussed above. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of the Veteran’s back disability. The record must be made available to the examiner and the examiner should indicate in his/her report whether the record was reviewed. Any indicated tests should be accomplished. Based on a review of the record and any examination findings, the examiner should provide an opinion as to whether it is at least as likely as not that a current back disability is etiologically related to an in-service injury, event, or disease, including the Veteran’s reported in-service back pain. The examiner should also provide an opinion as to whether there is undebatable evidence of a preexisting back disorder, and if so, whether there is undebatable evidence that the preexisting back disorder was not aggravated (non-temporary worsening beyond that natural progression of the disorder) by the reported in-service back pain. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Schedule the Veteran for a VA examination of his service-connected left knee disability. The electronic claims folder must be available for review. The examination report should indicate that the claims file was reviewed. The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   Any opinions expressed by the examiner must be accompanied by a complete rationale S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel