Citation Nr: 18142904 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 14-38 286A DATE: October 17, 2018 ORDER New and material evidence having been received, the petition to reopen the previously denied claim of entitlement to service connection for a sleep disorder is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a sleep disorder, diagnosed as obstructive sleep apnea, is remanded. Entitlement to service connection for carpal tunnel, left wrist is remanded. Entitlement to service connection for carpal tunnel, right wrist is remanded. Entitlement to a rating in excess of 20 percent for a cervical spine disability is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. An unappealed June 2002 rating decision denied service connection for a sleep disorder, VA did not receive an appeal or new and material evidence prior to expiration of the appeal period. 2. Evidence received since the June 2002 rating decision raises a reasonable possibility of substantiating the underlying claim of service connection for a sleep disorder, diagnosed as obstructive sleep apnea. CONCLUSION OF LAW The June 2002 rating decision denying the claim for service connection for sleep disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1974 to January 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from April 2010 and May 2014 rating decisions. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a sleep disorder. A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In a June 2002 rating decision, the RO denied service connection for a sleep disorder, on the basis that the evidence did not show a diagnosed sleep disability. The Veteran was notified of the decision and how to appeal in a June 2002 letter. VA did not receive an appeal or new and material evidence prior to expiration of the appeal period. Therefore, the 2002 decision became final. Evidentiary submission received since the June 2002 rating decision includes VA treatment records, private treatment records, and lay statements. A November 2014 VA treatment record reflects that the Veteran’s October 2014 sleep study was consistent with obstructive sleep apnea. The record shows a diagnosis for obstructive sleep apnea. A prior evidentiary defect has been cured. As such, the evidence is both new and material. Accordingly, the petition to reopen the claim for sleep disorder is granted. The matter of entitlement to service connection for sleep apnea is addressed in the below remand. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left shoulder disability. A November 1994 VA examination report notes that the Veteran reported pain in his neck, back, and shoulders, with pain radiating down his right arm following an in-service automobile accident. A May 1995 private treatment record reflects that the Veteran reported neck stiffness, headaches, shoulder problems, and right elbow pain following an automobile accident. A November 2009 VA examination report reflects that the Veteran reported right shoulder pain, but the examination was silent as to the left shoulder. VA treatment records reflect that the Veteran reported left shoulder pain in December 2009, especially at nighttime, and an imaging study revealed mild degenerative changes of the acromioclavicular joint. During a January 2014 VA examination, the Veteran reported that his left shoulder pain was not too bad, but that he had some numbness and tingling after lying on his left shoulder during sleep. The examiner indicated that the Veteran did not have a diagnosable left shoulder condition and opined that his symptoms could not be explained by mechanism of action as being related to his cervical spine condition. More recently, VA treatment records reflect continued complaints of left shoulder pain after several falls. The Board notes that the term “disability” for VA purposes refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (pain can qualify as a disability for VA compensation purposes). In this case, VA has not obtained a medical opinion as to whether the Veteran has a current left shoulder disability that was incurred in or otherwise related to service, to include as due to an in-service automobile accident. Furthermore, the Board finds the January 2014 VA examiner’s opinion inadequate, as the examiner failed to provide a sufficient basis or rationale for why the Veteran’s left shoulder numbness and tingling was not proximately due to his service-connected cervical spine disability. Therefore, the Board finds that a remand is warranted so that an adequate VA examination and medical opinion can be obtained as to the nature and etiology of the Veteran’s left shoulder disability. 2. Entitlement to service connection for left and right carpal tunnel syndrome. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for left and right carpal tunnel syndrome. A May 2010 VA treatment record reflects that an EMG revealed bilateral carpal tunnel syndrome. The Veteran was afforded a VA examination in January 2014. The examiner noted that the Veteran reported pain in the right wrist to the right forearm and numbness in the fingers bilaterally. The Veteran reported having been diagnosed with carpal tunnel and that he had been told that his carpal tunnel was proximately due to his cervical spine disability. Upon examination, the examiner found that the Veteran did not have ongoing symptoms of carpal tunnel and opined that the Veteran’s carpal tunnel was not at least as likely as not due to his cervical spine disability. An October 2015 VA treatment record reflects that the Veteran’s treating physician found that the Veteran’s carpal tunnel syndrome was likely the reason for his on-going hand pain. The examiner noted that the Veteran’s carpal tunnel co-existed with his right-sided shoulder and neck pain. Furthermore, the Veteran reports that his falls have aggravated his carpal tunnel pain. The Board finds the January 2014 VA examination is inadequate. While the examiner opined that the Veteran’s carpal tunnel was not at least as likely due to his cervical spine disability, the examiner did not provide a rationale or basis for the opinion. Additionally, while the January 2014 examiner found that the Veteran did not have current symptoms of carpal tunnel, the Veteran’s treating VA physician has found that his carpal tunnel is the cause of his hand pain. Therefore, the Board finds that a remand is warranted for a new VA examination and medical opinion as to the nature and etiology of the Veteran’s carpal tunnel syndrome. 3. Entitlement to service connection for a sleep disorder, diagnosed as obstructive sleep apnea is remanded. To ensure that VA has met its duty to assist, the Board finds that remand is necessary to obtain a VA medical opinion on whether the Veteran’s obstructive sleep apnea is related to service, to include in-service reports of trouble sleeping. McClendon v. Nicholson, 20 Vet App. 79 (2006). 4. Entitlement to a disability rating in excess of 20 percent for a cervical spine disability. The Veteran contends that a rating in excess of 20 percent is warranted for his cervical spine disability. In November 2015, the Veteran reported that his neck condition had worsened. Because this evidence suggests a material worsening of the Veteran’s conditon since his last VA examination in January 2014, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 5. Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran contends that a compensable rating is warranted for his hearing loss. The Veteran’s VA treatment records reflect that he had an audiogram in connection with a September 2015 audiology consult. The examiner noted bilateral high frequency sensorineural hearing loss at 4 to 8 kHz and further noted to refer to Vista Imaging for complete audiological results. The audiogram associated with the September 2015 audiology consult has not been made a part of the Veteran’s electronic claims file. While the April 2017 statement of the case (SOC) reflects that treatment records from the Palo Alto VAMC for the period of July 2001 to January 2017 were considered, it is not clear from the record that the RO reviewed the September 2015 audiogram. Furthermore, because the audiogram has not been made a part of the record, the Board is not able to review the audiogram as part of the record on appeal. Therefore, the Board remands the claim so that the audiogram associated with the September 2015 VA audiology consult can be obtained and associated with the Veteran’s electronic claims file. Also, a June 2017 statement from the Veteran suggests that his hearing disability has worsened since his March 2014 VA audiological examination. Therefore, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327; Snuffer, supra. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to present, and the audiogram associated with the Veteran’s September 2015 VA audiology consult. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left shoulder disability, to include degenerative changes and numbness and tingling. The examiner must opine whether any left shoulder disability at least as likely as not (1) began during active service, to include as related to an in-service automobile accident, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. If the examiner finds that a left shoulder disability was not incurred in or otherwise related to service, the examiner must opine whether any left shoulder disability is at least as likely as not (1) proximately due to service-connected disability, to include a cervical spine disability, or (2) aggravated beyond its natural progression by service-connected disability, to include falls from a service-connected lumbar spine disability with associated bilateral lower extremity radiculopathy. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral carpal tunnel syndrome. The examiner must opine whether the Veteran’s bilateral carpal tunnel syndrome is at least as likely as not (1) proximately due to service-connected disability, to include a cervical spine disability, or (2) aggravated beyond its natural progression by service-connected disability, to include falls from a service-connected lumbar spine disability with associated bilateral lower extremity radiculopathy. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed obstructive sleep apnea. The examiner must opine whether the Veteran’s obstructive sleep apnea at least as likely as not (1) began during active service, to include in-service reports of trouble sleeping and ear, nose, and throat problems, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 5. Schedule the Veteran for an examination of the current severity of cervical spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should note at what degree pain begins during range of motion testing. The examiner must also 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 Veteran’s cervical spine disability alone and discuss the effect of the Veteran’s cervical spine 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). 6. Schedule the Veteran for an examination by an audiologist to determine the current severity of his service-connected hearing loss for VA evaluation purposes. The audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel