Citation Nr: 18142852 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-34 061 DATE: October 17, 2018 ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for back pain, mechanical (claimed as low back pain); and if so, whether entitlement to service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for bilateral knee pain, to include sprains (claimed as knees- both pain); and if so, whether entitlement to service connection is warranted. 3. Entitlement to service connection for gastritis to include as due to an undiagnosed illness. 4. Entitlement to service connection for sweating at night, to include as due to an undiagnosed illness. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. 7. Entitlement to stiffness of skeletal system, to include as due to an undiagnosed illness. ORDER Having determined that new and material evidence has been received, the claim for entitlement to service connection for back pain, mechanical (claimed as low back pain) is reopened; to this extent, the appeal is granted. Having determined that new and material evidence has been received, the claim for entitlement to service connection for bilateral knee pain, to include sprains (claimed as knees- both pain) is reopened; to this extent, the appeal is granted. REMANDED Entitlement to service connection for back pain, mechanical (claimed as low back pain) is remanded. Entitlement to service connection for bilateral knee pain, to include sprains (claimed as knees- both pain) is remanded. Entitlement to service connection for gastritis to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for sweating at night, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness, is remanded. Entitlement to stiffness of skeletal system, to include as due to an undiagnosed illness, is remanded. FINDINGS OF FACT 1. In a January 1994 rating decision, the RO denied service connection for back pain, mechanical (claimed as low back pain). The Veteran was notified of his appellate rights, but did not perfect an appeal. 2. In a January 1994 rating decision, the RO denied service connection for bilateral knee pain, to include sprains (claimed as knees- both pain). The Veteran was notified of his appellate rights, but did not perfect an appeal. 3. New evidence has been received since the January 1994 rating decision which relates to previously unestablished facts necessary to substantiate the underlying claim of service connection for back pain, mechanical (claimed as low back pain), and raises a reasonable possibility of substantiating the claim. 4. New evidence has been received since the January 1994 rating decision which relates to previously unestablished facts necessary to substantiate the underlying claim of service connection for bilateral knee pain, to include sprains (claimed as knees- both pain), and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The January 1994 rating decision by the RO that denied service connection for back pain, mechanical (claimed as low back pain), is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200 (2018). 2. The January 1994 rating decision by the RO that denied service connection for bilateral knee pain, to include sprains (claimed as knees- both pain), is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200 (2018). 3. New and material evidence has been received to reopen the claim of service connection for back pain, mechanical (claimed as low back pain). 38 U.S.C. § 5108 (2012); § 38 C.F.R. § 3.156 (2018). 4. New and material evidence has been received to reopen the claim of service connection for bilateral knee pain, to include sprains (claimed as knees- both pain). 38 U.S.C. § 5108 (2012); § 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to March 1993, with service in the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, sitting in McAllen, Texas, testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in January 2018. A copy of the transcript of that hearing is of record. In any case involving a finally denied claim such as these now on appeal, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board, because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claims of entitlement to service connection for a back disability and a bilateral knee disability accordingly. In March 2018, the RO issued an additional Statement of the Case (SOC) regarding separate issues, and in April 2018 the Veteran submitted a VA Form 9. On the VA Form 9 the Veteran requested a videoconference hearing on the issues. Therefore, the Veteran awaits a videoconference hearing on the issues, and the issues listed in the March 2018 SOC are not currently before the Board for adjudication. The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018), eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board’s conclusion that the VCAA does not preclude the Board from adjudicating the Veteran’s claim as to whether new and material evidence has been received to reopen a claim for service connection for a back disability and a bilateral knee disability. This is so because the Board is reopening the claim and a decision at this point poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material A claim previously denied by the RO may be reopened if new and material evidence is presented. 38 U.S.C. § 5108, 7104, 7105; see 38 C.F.R. § 3.156 (2018). However, new and material evidence is not required as to each previously unproven element of a claim in order to reopen a claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156 (a). 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. Id. 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade, 24 Vet. App. at 117. Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). 1. Back Disability Here, the matter was originally denied in a January 1994 rating decision on the basis that the Veteran’s back pain is not a chronic disability. The Veteran was informed of his appellate rights with his denial, and did not file a timely appeal, nor submit new and material evidence within one year of the denial. The Veteran did not assert there was clear and unmistakable error. Therefore, the decision became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). Since the January 1994 rating decision, the Veteran testified before the undersigned VLJ. The Veteran testified that he has a current low back disability, which includes a diagnosis of lumbar spondylosis. Additionally, of record is a May 1995 VA examination, which reports back pain, which is non-radiating, but is aggravated with walking and standing for prolonged periods of time. The VA examiner noted that the Veteran’s back disability was likely related to the Veteran’s bow-legs. February 2012 private treatment records from Dr. R. R. C. indicate a diagnosis of bilateral scoliosis in the cervical and the dorsal columns, congenital spinal bifida, and lumbalgia sec scoliosis. The RO denied the reopening of the matter and continued the denial. As noted in the Introduction, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The Board finds that since the January 1994 rating decision new and material evidence is of record and warrants the reopening of the claim. The new medical and lay evidence of record adds to the evidence because it provides additional information regarding the Veteran’s current diagnosis, etiology, and symptomatology. Such evidence was not previously considered by the RO. This testimony is new and material to the claim as it was not previously considered by the RO and contains new evidence that relates to an unestablished fact necessary to substantiate the claim. The Board does not find the evidence to be duplicative. This new evidence is not redundant of the evidence of record at the time of the last prior final denial of the claim. In fact, this new evidence could certainly contribute to a more complete picture of the claimant’s injury or disability, regardless of whether it would not be enough to convince the Board to grant a claim. See Hodge, 155 F.3d at 1363. Assuming its credibility for the purposes of this review, as this evidence was not available at the time of the prior denial and as such evidence relates to unestablished facts necessary to further the Veteran’s claim, it is sufficient to reopen the claim. 2. Bilateral Knee Disability Turning to the issue whether new and material evidence has been received for bilateral knee disability, the matter was originally denied in a January 1994 rating decision on the basis that the Veteran’s bilateral knee disability was not a chronic disability shown in service or at VA examination. Moreover, the RO noted that the Veteran’s bow-legged deformity contributes to his knee pain. The Veteran was informed of his appellate rights with his denial, and did not file a timely appeal, nor submit new and material evidence within one year of the denial. The Veteran did not assert there was clear and unmistakable error. Therefore, the decision became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). Since the January 1994 rating decision, the Veteran was afforded a VA examination in May 1995. The Veteran asserted that he fell off a truck in 1989 and that he has a pain in his right knee under the knee cap when running and in cold weather. The Veteran reported that he used to job daily but that he now runs about two miles a week. Upon examination, the examiner found normal knee without effusion, swelling, or deformity, but noted that his bow-leg deformity contributes to his knee pain. The Veteran’s right knee pain was noted to be mildly symptomatic. Additionally, in June 2018 the Veteran testified before the undersigned VLJ. The Veteran testified that he the cartilage under his kneecap was wasted and that there is pain every time he walks. The Veteran explained that he does not run anymore, that he cannot do stairs or ladders because of pain, and that he believes his knee pain is the result of “wear and tear of running up and down the stairs, jumping off of trucks and getting on trucks.” The Veteran reported that he went to sick call in service as a result of his knee pain, and that he has been diagnosed with arthralgia and chondromalacia of the patella. The RO denied the reopening of the matter and continued the denial. As noted in the Introduction, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The Board finds that since the January 1994 rating decision new and material evidence is of record and warrants the reopening of the claim. The new medical and lay evidence of record adds to the evidence because it provides additional information regarding the Veteran’s current diagnosis, etiology, and symptomatology. Such evidence was not previously considered by the RO. This testimony is new and material to the claim as it was not previously considered by the RO and contains new evidence that relates to an unestablished fact necessary to substantiate the claim. The Board does not find the evidence to be duplicative. This new evidence is not redundant of the evidence of record at the time of the last prior final denial of the claim. In fact, this new evidence could certainly contribute to a more complete picture of the claimant’s injury or disability, regardless of whether it would not be enough to convince the Board to grant a claim. See Hodge, 155 F.3d at 1363. Assuming its credibility for the purposes of this review, as this evidence was not available at the time of the prior denial and as such evidence relates to unestablished facts necessary to further the Veteran’s claim, it is sufficient to reopen the claim. REASONS FOR REMAND The Veteran asserts that he has current disabilities that include gastritis, sweating in his sleep, sleep apnea, fatigue, bilateral knee pain, back pain, and stiffness. The Veteran asserts that his current disabilities are the result of his service. Specifically, the Veteran served in the Gulf War and states that he was exposed to radiation in service from radar units in service, and further that he was exposed to the oil well smoke in the Gulf in service. See March 2010 VA examination. The Veteran also reports wear and tear of his knees from running up and down the stairs, jumping off of trucks, and getting on trucks in service. See June 2018 videoconference hearing. Specifically, at the May 1995 VA examination the Veteran asserted that he fell off a truck in 1989. VA examinations of record also indicate knee and back pain related to the Veteran’s bow-legged deformity. However, the Veteran’s examination upon entrance is silent for any bow-legged deformities or abnormalities. Service treatment records indicate treatment for and complaints of swollen and painful joints with cramps in the legs, recurrent back pain, and frequent indigestion. See June 1990 (knee pain); April 1990 (nausea and vomiting); February 1992 (fatigue and upset stomach with diarrhea); April 1991 (right knee pain when running or using stairs, painful joints, cramps in legs, foot trouble, frequent indigestion); and January 1993 (swollen or painful joints, cramps in legs, recurrent back pain, frequent indigestion). Although the Veteran was afforded a VA examination for Gulf War Syndrome, to include chronic fatigue syndrome, the Veteran has not been afforded a VA examination of each of the Veteran’s asserted disabilities, nor has an opinion regarding the etiology of the Veteran’s asserted disabilities been furnished. As there is evidence of such disabilities, and a potential links between the various disabilities and the Veteran’s service, examinations are required. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79. Given the lack of sufficient medical evidence to make a decision on this matter, the Veteran should be afforded VA examinations to clarify the Veteran’s disabilities and to address the etiology of any disability. See Colvin, 1 Vet. App. 171 (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). Additionally, the Veteran’s allegations of exposure to radiation in service should be fully developed. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should any outstanding private treatment records exist, ask the Veteran to complete a VA Form 21-4142, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Thereafter, make a request for any available records concerning the veteran’s exposure to radiation. See March 2010 VA examination (The Veteran asserts that he was exposed to radiation from radar units in service and from the oil well smoke in service.) These records normally include but may not be limited to the veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran’s radiation dose in service. All such records must be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311 (a)(2)(iii) (2018). 3. Thereafter, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his claimed gastritis, sleep apnea, fatigue, sweating, stiffness, bilateral knee pain, and back pain. Any indicated tests should be accomplished. The examiner should review the claims file prior to examination. The examiner(s) should elicit a complete history from the Veteran regarding his claimed disabilities, the pertinent details of which should be included in the examination report. Following review of the claims file and interview and examination of the Veteran, the examiner should note and detail all reported signs and symptoms referable to the Veteran’s asserted disabilities, including details about the onset, frequency, duration, and severity of all complaints relating to those signs and symptoms. Gastritis: (a) With regard to any gastritis symptom not attributable to a diagnosed disorder, the examiner must opine whether it is at least as likely as not (a probability of 50 percent or greater) a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness such as chronic fatigue syndrome or fibromyalgia. (b) If the Veteran’s reported gastritis symptoms are ascribed to a known diagnostic entity, the examiner should provide the following opinions: i.) Whether any identified diagnostic entity at least as likely as not (50 percent or greater probability) had its onset in or is otherwise related to active service, to include the Veteran’s environmental exposure in the Southwest Asia theater and/or to include the Veteran’s asserted radiation exposure in service. The examiner’s attention is directed to the Veteran’s assertions of radiation exposure in service. See March 2010 VA examination. The examiner’s attention is also directed to, and the VA examiner should address, the Veteran’s service treatment records and his complaints of stomach issues in service. See service treatment records dated April 1990 (nausea and vomiting); February 1992 (fatigue and upset stomach with diarrhea); April 1991 (right knee pain when running or using stairs, painful joints, cramps in legs, foot trouble, frequent indigestion); and January 1993 (swollen or painful joints, cramps in legs, recurrent back ain, frequent indigestion). ii.) Whether any identified diagnostic entity is at least as likely as not (50 percent or greater probability) caused by or due to the Veteran’s service-connected disabilities, to include his major depressive disorder with generalized anxiety disorder. iii.) Whether any identified diagnostic entity is at least as likely as not (50 percent or greater probability) aggravated by the Veteran’s service-connected disabilities, to include his major depressive disorder with generalized anxiety disorder. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran’s identified diagnostic entity found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability or disabilities. Sweating at Night, Fatigue, Sleep Apnea: (c) With regard to the Veteran’s asserted sweating at night, fatigue, and sleep apnea, any symptom not attributable to a diagnosed disorder, the examiner must opine whether it is at least as likely as not (a probability of 50 percent or greater) a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness such as chronic fatigue syndrome or fibromyalgia. (d) If the Veteran’s reported symptoms are ascribed to a known diagnostic entity, the examiner should provide the following opinions: i.) Whether any identified diagnostic entity at least as likely as not (50 percent or greater probability) had its onset in or is otherwise related to active service, to include the Veteran’s environmental exposure in the Southwest Asia theater and/or to include the Veteran’s asserted radiation exposure in service. The examiner’s attention is directed to the Veteran’s assertions of radiation exposure in service. See March 2010 VA examination. ii.) Whether any identified diagnostic entity is at least as likely as not (50 percent or greater probability) caused by or due to the Veteran’s service-connected disabilities, to include his major depressive disorder with generalized anxiety disorder, his hearing loss disability, and/or his tinnitus. iii.) Whether any identified diagnostic entity is at least as likely as not (50 percent or greater probability) aggravated by the Veteran’s service-connected disabilities, to include his major depressive disorder with generalized anxiety disorder, his hearing loss disability, and/or his tinnitus. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran’s identified diagnostic entity found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability or disabilities. Stiffness of Skeletal System, Back Pain, Bilateral Knee Pain: (e) With regard to the Veteran’s stiffness, back pain, and knee pain, any symptom not attributable to a diagnosed disorder, the examiner must opine whether it is at least as likely as not (a probability of 50 percent or greater) a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness such as chronic fatigue syndrome or fibromyalgia. (f) If the Veteran’s reported symptoms are ascribed to a known diagnostic entity, the examiner should provide the following opinions: i.) Whether any identified diagnostic entity at least as likely as not (50 percent or greater probability) had its onset in or is otherwise related to active service, (1) to include the Veteran’s environmental exposure in the Southwest Asia theater, (2) to include the Veteran’s asserted radiation exposure in service, and/ or (3) to include the Veteran’s asserted in-service knee injury and wear and tear in-service. The VA examiner’s attention is directed to the May 1995 VA examination (the Veteran asserted that he fell off a truck in 1989 and that he has a pain in his right knee under the knee cap when running and in cold weather). The VA examiner’s attention is also directed to the June 2018 videoconference hearing (the Veteran testified that he believes his knee pain is the result of “wear and tear of running up and down the stairs, jumping off of trucks and getting on trucks.”) The VA examiner’s attention is directed to, and the VA examiner should address, the service treatment records indicating swollen and painful joints with cramps in the legs and recurrent back pain in service. See June 1990 (knee pain); April 1991 (right knee pain when running or using stairs, painful joints, cramps in legs, foot trouble, frequent indigestion); and January 1993 (swollen or painful joints, cramps in legs, recurrent back ain, frequent indigestion). The examiner’s attention is directed to the Veteran’s assertions of radiation exposure in service. See March 2010 VA examination. ii.) Whether any identified diagnostic entity is at least as likely as not (50 percent or greater probability) caused by or due to the Veteran’s service-connected disabilities, to include his major depressive disorder with generalized anxiety disorder. iii.) Whether any identified diagnostic entity is at least as likely as not (50 percent or greater probability) aggravated by the Veteran’s service-connected disabilities, to include his major depressive disorder with generalized anxiety disorder. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran’s identified diagnostic entity found prior to aggravation; and (2) the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected disability or disabilities. The examiner is advised that the Veteran’s personnel records confirm service in the Southwest Asia theater. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any and all opinions must be accompanied by a discussion of the underlying reasons for the conclusions. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence, or information would be useful in rendering an opinion. 4. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the claims. If any claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and an opportunity to respond. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamie Tunis, Associate Counsel