Citation Nr: 18144092 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 15-00 488 DATE: October 23, 2018 ORDER New and material evidence has been received to reopen a service connection claim for a low back disability. The claim for service connection is reopened. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hip strain and arthralgia is remanded. FINDINGS OF FACT 1. In April 2004, the RO denied the Veteran’s claim of service connection for low back pain. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision’s issuance 2. Certain evidence received since the April 2004 decision is neither cumulative nor redundant of the evidence of record at the time of the April 2004 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea began during active service. CONCLUSIONS OF LAW 1. The April 2004 RO rating decision, which denied the Veteran’s service connection claim for low back pain is final. 38 U.S.C. § 7105. 2. Evidence received since the April 2004 RO rating decision is new and material; accordingly, the claim for service connection for a low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. The Veteran’s previous claims for service connection for a low back disability were denied by rating decisions dated June 2003 and April 2004. In its October 2014 statement of the case, the RO determined that the claims were reopened. Despite the determination made by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is “new and material.” See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define “new and material evidence”) provides as follows: 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). Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that 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 denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Veteran’s claim of service connection for low back pain was denied in June 2003 and April 2004 rating decisions. The Veteran failed to file a timely notice of disagreement in response to the April 2004 rating decision, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). The evidence on record at the time of the April 2004 denial included the service treatment records reflecting numerous reports of low back pain in March 1981, December 1992, and from August 1999 through January 2000. No findings were noted on an October 2002 separation examination. The evidence also included a January 2004 examination report in which the Veteran had full range of motion; and the examiner rendered a nexus opinion that weighed against the Veteran’s claim. The basis for the denial was the fact that at the Veteran’s January 2004 VA examination, “no chronic disability was diagnosed or related to service.” Evidence received since the April 2004 rating decision includes an October 2010 MRI that shows that moderate degenerative disease to L4-L5 and mild to moderate disc disease of LS-S1 was diagnosed. The Board notes that the Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as enabling rather than precluding the reopening of a claim. The Court emphasized that 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. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board finds that the October 2010 MRI (as well as other post-service treatment reports) meets the low threshold of 38 C.F.R. § 3.156(a) and is new and material evidence to reopen the Veteran’s claim. The report reflects that the Veteran has a diagnosed back disability. As noted above, the RO previously denied the claim because there was no diagnosis or underlying malady upon which a service connection claim could be based. The new evidence shows objective findings of degenerative changes. This constitutes an unestablished fact necessary to substantiate the claim. As new and material evidence has been received to reopen the claim, the claim for entitlement to service connection is reopened. Service Connection Entitlement to service connection for sleep apnea The Veteran contends that he has sleep apnea that began during service. The Board concludes that the Veteran has a current diagnosis of sleep apnea that began during active service. Correspondences from Drs. D.Z.A. and O.M. dated April 2011 and December 2011 show that the Veteran has a current diagnosis of sleep apnea that was shown on a May 2005 sleep study. The study reflects that the Veteran had a moderate to severe degree of sleep fragmentation with an arousal index of 30/hour. A December 2011 affidavit from the Veteran’s spouse reflects that she has witnessed symptoms of sleep apnea (loud snoring, and cessation of breathing while sleeping) for the past 25+ years. The Veteran also submitted a July 2014 medical opinion in which the examiner opined that the Veteran’s sleep apnea began many years prior to its diagnosis, and likely began while the Veteran was on active duty. The RO denied the claim because the sleep apnea diagnosis was rendered two years after the Veteran separated from service. The Board notes that the Veteran’s spouse has stated that the Veteran’s symptoms were noted some 25+ years ago. The Board also notes that it is not uncommon for sleep apnea to be diagnosed well after its onset, because the symptoms are unknown to the Veteran insofar as they occur when the Veteran is unconscious (sleeping). The fact that the Veteran’s sleep apnea was moderate to severe just two years after separation from service suggests that it began prior to its diagnosis, and possibly during service. This is substantiated by the Veteran’s spouse and a July 2014 medical opinion. Notwithstanding the fact that no symptoms were documented in the service treatment records, the Board finds that a preponderance of the evidence weighs in favor of the Veteran’s claim. Consequently, the Board finds that service connection for sleep apnea is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. As noted above, the service treatment records reflect numerous treatment reports documenting back injuries in March 1981, December 1992, and August 1999. Post service treatment reports reflect that the Veteran has been diagnosed with diagnosed with moderate degenerative disease to L4-L5 and mild to moderate disc disease of LS-S1. Consequently, the only remaining element necessary to warrant service connection is a nexus opinion linking the Veteran’s current disability to his in-service injuries. The Veteran underwent a VA examination in July 2012. The examiner rendered an opinion that weighed against the Veteran’s claim; however, the rationale for the opinion is inadequate. The examiner noted the two previous denials of service connection and found that the development of lumbar spondylosis subsequent to the Veteran’s previous denials does not substantially alter the decsions previously rendered. The examiner went on to state that “No new or material evidence pertaining to the Veteran’s military service or the presumptive period thereafter were presented for consideration.” Hence it appears that the basis for the negative nexus opinion is the examiner’s finding that the Veteran has not submitted new and material evidence. This does not constitute a medical finding. Moreover, it conflicts with the Board’s finding that new and material evidence has been received. Consequently, the Veteran’s claim is to be readjudicated on a de novo basis; and the examiner should have rendered a de novo opinion. Additionally, the Board notes that at his July 2018 Board hearing, the Veteran testified that his service connected left knee disability has resulted in an altered, unbalanced, gait. The Board recognizes that an altered gait can lead to disabilities in other joints, including the Veteran’s back. Therefore, a theory of secondary service connection is raised by the record. The Board finds that a new VA examination is warranted in order to obtain an adequate medical opinion regarding the etiology of the Veteran’s current back disability. 2. Entitlement to service connection for a left hip strain and arthralgia is remanded. As noted above, the Veteran testified that his service connected left knee disability causes an altered gait, which is putting additional stress onto his left hip. The Veteran underwent a VA examination in March 2012. The examiner rendered an opinion that weighs against the Veteran’s claim. However, the opinion did not address the Veteran’s contentions regarding an altered gait and the additional stress on his left hip. Additionally, the negative nexus opinion is, in part, based on a conclusion that “imaging fails to demonstrate any abnormality to the L[eft] Hip, and does not correlate [with] the claimed condition.” The Board notes that despite the fact that no abnormality was seen on x-rays, the examiner noted that flexion was limited to 110 degrees; and extension was limited to 5 degrees. There was also pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weightbearing. Consequently, there were objective abnormal findings. Similar findings were noted in a July 2012 examination report. The Board finds that a new examination is warranted in order to obtain an adequate medical opinion regarding the etiology of the Veteran’s left hip disability. Finally, with regards to both claims remaining on appeal, the Board notes that the Veteran testified that after separation from service, he sought treatment with Tricare in 2003. He stated that these records are in the claims file; but the Board cannot locate them. They are not listed on the October 2014 statement of the case. To the extent that that there may be records not yet incorporated into the claims file, the Veteran should be provided with an Authorization and Consent Form so that the RO can obtain any outstanding records. The matters are REMANDED for the following action: 1. Provide the Veteran with an Authorization and Consent Form so that he can identify any outstanding records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back and left hip disability. The examiner must opine whether it is at least as likely as not that the Veteran’s current back disability is related to an in-service injury, event, or disease, including injuries sustained in March 1981, December 1992, and August 1999. The examiner should also render an opinion as to whether the Veteran’s back disability and/or left hip disability is at least as likely as not (1) proximately due to his service-connected left knee disability, or (2) aggravated beyond its natural progression by his service-connected left knee disability. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel