Citation Nr: 18143028 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-31 931 DATE: October 17, 2018 ORDER New and material evidence has not been presented to reopen a previously denied claim for a right hip disability. New and material evidence has not been presented to reopen a previously denied claim for a right knee disability. New and material evidence having been presented, the Veteran’s previously denied claim for entitlement to service connection for a right lower extremity disability, to include shin splints and a right ankle stress fracture, is reopened. New and material evidence having been presented, the Veteran’s previously denied claim for entitlement to service connection for a left lower extremity disability, to include shin splints and left ankle tendonitis, is reopened. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, hypersomnia, and narcolepsy, is denied. REMANDED Entitlement to service connection for a right lower extremity disability, to include a right ankle disability, is remanded. Entitlement to service connection for a left lower extremity disability, to include a left ankle disability, is remanded. Entitlement to service connection for a bilateral foot disability is remanded. FINDINGS OF FACT 1. A June 1992 RO decision denied entitlement to service connection for a right ankle fracture, left ankle tendonitis, bilateral shin splints, and a right knee disability; the Veteran did not appeal or submit new and material evidence within one year of the decision. 2. An August 1997 RO decision denied entitlement to service connection for a right ankle disability, a right knee disability, and a right hip disability; the Veteran did not appeal or submit new and material evidence within one year of the decision. 3. Evidence received since the June 1992 and August 1997 RO decisions is not new and material with respect to the Veteran's claims for right hip and right knee disabilities, and these claims cannot be reopened. 4. Evidence received since the June 1992 and August 1997 RO decisions is new and material with respect to the Veteran’s claims for right and left lower extremity disabilities, and these are reopened. 5. The preponderance of the evidence is against finding that the Veteran's lumbar degenerative disc disease began during active service, or is otherwise related to an in-service injury, event, or disease. 6. The preponderance of the evidence is against finding that the Veteran has a current left hip disability that began during active service, or is otherwise related to an in-service injury, event, or disease. 7. The preponderance of the evidence is against finding that the Veteran’s left knee osteoarthritis began during active service, or is otherwise related to an in-service injury, event, or disease. 8. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral hearing loss as defined by 38 C.F.R. § 3.385. 9. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. 10. The preponderance of the evidence is against finding that the Veteran's obstructive sleep apnea, hypersomnia, or narcolepsy began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The June 1992 RO decision that denied entitlement to service connection for a right ankle fracture, left ankle tendonitis, bilateral shin splints, and a right knee disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 2. The August 1997 RO decision that denied entitlement to service connection for a right ankle disability, a right knee disability, and a right hip disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. 3. New and material evidence regarding the Veteran's claims for a right knee disability and a right hip disability has not been received since the August 1997 RO decision, and the Veteran’s claims for entitlement to service connection for a right knee disability and a right hip disability cannot be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence regarding the Veteran’s claims for right and left lower extremity disabilities has not been received since the June 1992 and August 1997 RO decisions, and the Veteran’s claims for entitlement to service connection for a right lower extremity disability and a left lower extremity disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131; 38 C.F.R. § 3.303. 6. The criteria for entitlement to service connection for a left hip disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131; 38 C.F.R. § 3.303. 7. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131; 38 C.F.R. § 3.303. 8. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.385. 9. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. § 3.303. 10. The criteria for entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, hypersomnia, and narcolepsy, have not been met. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1988 to February 1992. New and Material The Veteran’s original claims for entitlement to service connection for a right ankle stress fracture, left ankle tendonitis, bilateral shin splints, and a right knee disability was denied in a June 1992 RO decision; the Veteran did not appeal. In an August 1997 decision, the RO denied entitlement to service connection for a right hip disability and determined that new and material evidence had not been submitted to reopen a previously denied claims for a right ankle disability and a right knee disability. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, 38 U.S.C. § 5108 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) 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. The RO denied the appellant’s claims in 1992 because there was no evidence that the Veteran had any current disability. It was also noted that there were no complaints of right knee pain or injury in service. In 1997, the RO continued to find no evidence of a right knee or ankle disability. Since these decisions, there is still no evidence of any current right knee or hip disability that has been related to service. A March 2012 VA examiner noted that examinations of the knees and hips were essentially normal and that there were no complaints of hip or knee problems in service. Thus, the evidence received since the June 1992 and August 1997 RO decisions with respect to the Veteran's claims for right knee and right hip disabilities is new, but not material. Accordingly, the Veteran's claims for entitlement to service connection for a right knee disability and a right hip disability cannot be reopened. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, since the August 1997 RO decision, VA outpatient treatment records show treatment for bilateral ankle sprains. This evidence of current right and left ankle disabilities is both new and material. Accordingly, the Veteran’s prior claims for entitlement to service connection for a right lower extremity disability and a left lower extremity disability are reopened and will be addressed in the Remand section below. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). 1. Entitlement to service connection for a low back disability The Veteran is seeking entitlement to service connection for a low back disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of lumbar degenerative disc disease, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran's service treatment records are negative for any injury to the back or spine or any complaints of low back pain, and there is no evidence that the Veteran complained of any back problems within a year of separation from service. While the Veteran's VA outpatient treatment records and private medical records show current treatment for his lumbar degenerative disc disease, it does not appear that any of his treatment providers have related this condition to the Veteran's service, and it is unclear how the Veteran believes his low back disability is related to his service. Absent any evidence that the Veteran's current low back disability had onset in service or was caused by or related to his active service, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left hip disability The Veteran is seeking entitlement to service connection for a left hip disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As an initial matter, it is unclear whether the Veteran has a current left hip disability. Although the Veteran's VA outpatient treatment records note complaints of hip pain, they are negative for any diagnosed left hip condition, and a March 2012 VA examination found that even though the Veteran's reported “weak hips” and pain with hip adduction, a clinical examination and x-rays were negative for any pathology. However, the Board concludes that, even if the Veteran has a current left hip disability, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are negative for any injury to the left hip or any complaints of left hip pain, and there is no evidence that the Veteran complained of any left hip problems within a year of separation from service. Additionally, the Veteran has not presented any competent medical evidence of a nexus between any left hip condition and his active service. Absent any evidence that the Veteran has a current left hip disability that had onset in service or was caused by or related to his active service, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a left knee disability The Veteran is seeking entitlement to service connection for a left knee disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, even though the Veteran has left knee osteoarthritis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are negative for any injury to the left knee or any complaints of left knee pain, and there is no evidence that the Veteran complained of any left knee problems within a year of separation from service. Additionally, the Veteran has not presented any competent medical evidence of a nexus between any left knee condition and his active service. Absent any evidence that the Veteran has a current left knee disability that had onset in service or was caused by or related to his active service, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for bilateral hearing loss The Veteran is seeking entitlement to service connection, which he attributes to hazardous noise exposure in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). At a September 2011 VA examination, an audiologist evaluated the Veteran and determined that, while he reported subjective symptoms of difficulty hearing, his hearing was normal bilaterally when tested. A review of the Veteran's VA and private treatment records is also negative for any complaints or diagnosis of hearing loss. Since the Veteran has not presented any evidence that he had a hearing loss disability at any time during the period on appeal, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to service connection for tinnitus The Veteran is seeking entitlement to service connection for tinnitus, which he contends was caused by hazardous noise exposure in service. The Veteran was diagnosed with tinnitus at a September 2011 VA examination. At issue is whether this current disability is related to service, and the Board finds that there is evidence both for and against the Veteran's claim. There is no evidence in the Veteran's service treatment records that he complained of tinnitus in service or for almost two decades after separation from service. Additionally, the Veteran has reported a post-service history of loud noise exposure. However, the Veteran stated at his September 2011 VA examination that his tinnitus began during service, and he did have significant hazardous noise exposure during active duty. The Board concludes that the evidence is at least in equipoise concerning the cause of the Veteran’s tinnitus. Accordingly, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for tinnitus is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 6. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, hypersomnia, and narcolepsy, The Veteran is seeking entitlement to service connection for a sleep disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed with obstructive sleep apnea, narcolepsy, and hypersomnia, the preponderance of the evidence is against finding that any of these conditions began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran's service treatment records are negative for any complaints of or treatment for a sleep disorder of any kind. Post-service, VA outpatient treatment records, as well as private medical records from Danville Neurology and Carilion Clinic, show that the Veteran has been diagnosed with obstructive sleep apnea, narcolepsy, idiopathic hypersomnolence, and shift worker disorder. However, none of these records places onset of the Veteran's sleep disorders during his military service or otherwise relates his condition to service. At a March 2009 office visit with Tri-Area Community Health, the Veteran reported experiencing symptoms of fatigue, apnea, and snoring of approximately three years duration, placing onset of his symptoms more than a decade after separation from service. In a statement received in October 2017, the Veteran's mother, K.F., reported that the Veteran told her he had been hazed in service because of his snoring and had once fallen asleep standing up while on guard duty. However, if these accounts were an attempt to place onset of the Veteran's sleep disorder in service, other statements from K.F. undermined that attempt, since she also stated, “He apparently has had issues with this his entire life, as he would take an afternoon nap every day as a child. It prevented him from enjoying normal activities, such as watching television or going to the movies.” Treatment records from Danville Neurology also show that the Veteran reported “sleep issues since teenage years.” Overall, the preponderance of the evidence weighs against a finding that the Veteran’s sleep disorders, to include obstructive sleep apnea, narcolepsy, and hypersomnia, had onset during the Veteran's military service or was otherwise caused by or related to the Veteran's active service. As previously noted, the Veteran's service treatment records are negative for any sleep disorder. Furthermore, although the Veteran has been somewhat inconsistent in his statements regarding when he first experienced symptoms of his sleep disorder, statements from both the Veteran and his mother support a finding that he has had a sleep disorder at least since he was a teenager. There are no complaints of sleep problems in the Veteran's service treatment records that would support a finding that a pre-existing sleep disorder was permanently aggravated by his period of active service, nor has any of the Veteran's treatment providers suggested a relationship between the Veteran's active service and any current sleep condition. For all the above reasons, entitlement to service connection for a sleep disorder, to include obstructive sleep apnea, narcolepsy, and hypersomnia, must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right lower extremity disability, to include shin splints and residuals of right ankle fracture, and entitlement to service connection for a left lower extremity disability, to include a left ankle disability, are remanded. The Veteran is seeking entitlement to service connection for disabilities of the right and left lower extremities, to include a bilateral ankle disability, which the Veteran has alleged are related to a series of bilateral lower extremity complaints in service, including complaints of left ankle pain and Achilles tendonitis, right shin splints and possible right ankle stress fracture. The Veteran was afforded a VA examination in March 2012, but the examiner found no disability of the right or left ankle or leg. However, VA outpatient treatment records since that examination note ongoing complaints of right and left ankle pain, as well as bilateral ankle sprains. As there is currently evidence of bilateral ankle pathology, the Board finds that another VA examination is required to address whether it is related to the Veteran's inservice complaints. 2. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran is also seeking entitlement to service connection for a bilateral foot disability. The Veteran's service treatment records are negative for any diagnosed foot condition, other than mild, asymptomatic pes planus noted at the Veteran's 1988 enlistment. The Veteran has a current diagnosis of bilateral hallux valgus with bunions. In March 2012, a VA examiner opined it was less likely than not any current foot condition was related to service, citing the absence of any in service foot problems. However, the Board notes that at a March 1992 VA examination, slightly less than two months after the Veteran's separation from service, he was diagnosed with bilateral hallux valgus with bunions. The significance, or lack thereof, of the condition presenting so soon following the Veteran's separation from service, was not addressed by any VA examiner. Accordingly, the Board finds that an addendum medical opinion is required to address whether the Veteran's bilateral hallux valgus had onset in service or was caused by or related to the Veteran's active service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right or left lower extremity disability, to include, but not limited to, any right or left ankle disability. For each diagnosed disability, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran's inservice complaints. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner is also asked to address the finding of bilateral hallux valgus at a March 1992 VA examination, approximately two months after separation from service. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. D. Anderson, Counsel