Citation Nr: 18144850 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-08 289 DATE: October 25, 2018 ORDER New and material evidence having been presented, the claims of entitlement to service connection for a back disability, a right knee disability, and an acquired psychiatric disorder are reopened. To this limited extent only, the appeal of those issues is granted. New and material evidence not having been presented, the claims of entitlement to service connection for tuberculosis, sleep apnea, and carpal tunnel syndrome are not reopened. Entitlement to service connection for hardening of the lungs is denied. Entitlement to service connection for left and right knee disabilities is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran’s first claim of service connection for tuberculosis was denied in a May 1981 rating decision that was not appealed; his second claim of service connection for tuberculosis as well as his first claims of service connection for a back disability, a right knee disability, depression, sleep apnea, and carpal tunnel syndrome were denied in an April 2008 rating decision that was not appealed. 2. No further evidence relevant to the claim for service connection for tuberculosis was submitted for a period of one year following the May 1981 rating decision; no further evidence relevant to the service connection claims for a back disability, a right knee disability, an acquired psychiatric disorder, sleep apnea, carpal tunnel syndrome, or tuberculosis was submitted for a period of one year following the April 2008 rating decision. 3. Evidence relevant to the back disability, right knee disability, and acquired psychiatric disorder claims submitted since the April 2008 rating decision was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claims for service connection. 4. Evidence relevant to the sleep apnea, carpal tunnel syndrome, and tuberculosis claims submitted since the April 2008 rating decision was not previously considered by agency decision makers, but is cumulative of the evidence already of record and does not relate to unestablished facts of the sleep apnea, carpal tunnel syndrome, and tuberculosis claims. 5. The medical evidence of record does not indicate a diagnosis of any lung hardening disease. 6. The competent evidence of record reflects the bilateral knee osteoarthritis is more likely caused by obesity than by the Veteran’s military service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the April 2008 denial became final; the criteria for reopening the previously denied claim for a back disability have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the April 2008 denial became final; the criteria for reopening the previously denied claim for a right knee disability have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. New and material evidence has been received since the April 2008 denial became final; the criteria for reopening the previously denied claim for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. New and material evidence has not been received since the April 2008 denial became final; the criteria for reopening the previously denied claim for tuberculosis have not been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 5. New and material evidence has not been received since the April 2008 denial became final; the criteria for reopening the previously denied claim for sleep apnea have not been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 6. New and material evidence has not been received since the April 2008 denial became final; the criteria for reopening the previously denied claim for carpal tunnel syndrome have not been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 7. The criteria for establishing service connection for hardening of the lungs have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for establishing service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for establishing service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from September 1976 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, in order to best comport with the evidence of record, the Board has recharacterized the issue of service connection for depression to that for an acquired psychiatric disability, to include depression. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (a claimant is not expected to precisely identify diagnoses when applying for disability benefits). New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. 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). 1. Whether new and material evidence has been received to reopen the claims of service connection for a back disability, a right knee disability, and an acquired psychiatric disorder The Veteran filed his initial claims for service connection for a back disability, a right knee disability, and depression in July 2007. The RO denied service connection for these claims in an April 2008 rating decision. The denial for the back disability was based on a finding that there was no current thoracic spine diagnosis, and no nexus between a current lumbar spine diagnosis and the Veteran’s service. The denial of the depression claim was based on a finding that there was no nexus between the current diagnosis and the Veteran’s service. The denial of the right knee disability was based on a finding that there was no in-service event or injury and no other nexus between the Veteran’s service and the report chronic right knee pain. The Veteran was notified of these decisions in an April 2008 notice letter. The Veteran did not submit a notice of disagreement with the decision or any additional evidence respecting the claims within one year of that notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the April 2008 notice letter, the April 2008 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claims of service connection for a back disability, a right knee disability, and an acquired psychiatric disorder, to include depression. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the April 2008 rating decision, the Veteran has attended a VA spine examination and a VA knee examination, and evidence of additional psychiatric diagnoses has been associated with the record. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claims of service connection for a back disability, a right knee disability, and an acquired psychiatric disorder has been received in this case, and the claims are reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence indicating a medical opinion is warranted is sufficient to reopen a claim); 2. Whether new and material evidence has been received to reopen the claim of service connection for tuberculosis The Veteran filed his initial claim for tuberculosis, based on a positive purified protein derivative (PPD) test, in November 1980. The RO denied service connection for that claim in a May 1981 rating decision based on a finding that there was no current diagnosis of tuberculosis. The Veteran was notified of that decision in a May 1981 notice letter. The Veteran did not submit any additional evidence or a notice of disagreement with the decision within one year of that notice letter. He applied again for service connection for tuberculosis in July 2007, and an April 2008 rating decision denied the petition to reopen the claim. The RO based this decision on a finding that the VA treatment records added to the claims file did not constitute new and material evidence, as they did not relate to any unestablished facts relevant to the claim, including demonstrating any current diagnosis of tuberculosis. The Veteran was notified of this decision in an April 2008 notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the April 2008 notice letter, the April 2008 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for tuberculosis. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the April 2008 rating decision, no evidence regarding the tuberculosis claim has been associated with the record. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for tuberculosis has not been received in this case, and the petition to reopen the claim is denied. 3. Whether new and material evidence has been received to reopen the claim of service connection for sleep apnea The Veteran filed his initial sleep apnea claim in July 2007. The RO denied service connection for that claim in an April 2008 rating decision based on a finding that there was no evidence of any in-service incurrence of the disability nor of a nexus between the current disability and the Veteran’s service. The Veteran was notified of that decision in an April 2008 notice letter. The Veteran did not submit any additional evidence or a notice of disagreement with the decision within one year of that notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the April 2008 notice letter, the April 2008 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for sleep apnea. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the April 2008 rating decision, evidence relevant to this claim has been submitted in the form of VA treatment records. While the evidence at the time of the rating decision showed that the Veteran received treatment for sleep apnea with a CPAP machine since 2002, the progress notes since April 2008 generally describe the Veteran’s compliance with the prescribed CPAP usage. The treatment records also reflect continued treatment at a VA sleep clinic, including a sleep consult in July 2015. However, these progress notes and consultation reports only address the current state of the Veteran’s sleep apnea and not its history or cause. Nothing in the additional evidence addresses a nexus between the Veteran’s established sleep apnea and his service or between this disability and his other service-connected disabilities. Therefore, the only evidence received since the prior final decision is duplicative and cumulative of evidence already considered at the time of the April 2008 rating decision. Without evidence regarding in-service onset or incurrence of sleep apnea, or a nexus between sleep apnea and the Veteran’s service, the claim for service connection for sleep apnea cannot be reopened. See 38 C.F.R. § 3.156(a). 4. Whether new and material evidence has been received to reopen the claim of service connection for carpal tunnel syndrome The Veteran filed his initial carpal tunnel syndrome claim in July 2007. The RO denied service connection for that claim in an April 2008 rating decision based on a finding that there was no evidence of any in-service incurrence of the disability nor of a nexus between the current disability and the Veteran’s service. The Veteran was notified of that decision in an April 2008 notice letter. The Veteran did not submit any additional evidence or a notice of disagreement with the decision within one year of that notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the April 2008 notice letter, the April 2008 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for carpal tunnel syndrome. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the April 2008 denial, VA treatment records are the only additional evidence that has been submitted relevant to this claim. These records indicate that the Veteran is followed for carpal tunnel syndrome, as it is listed as a diagnosis on his active problem list. However, there is no treatment for the disability in any of the progress notes; therefore, these treatment records only speak to the service connection element of diagnosis of a current disability. At the time of the April 2008 rating decision, there was evidence in the record of a diagnosis of a current disability. As such, the evidence received since the prior final decision is duplicative and cumulative of evidence already considered at the time of the April 2008 rating decision. No evidence regarding a relationship between the Veteran’s established carpal tunnel syndrome disability and service or between this disability and other service-connected disabilities has been received. Without such evidence, the claim for service connection for carpal tunnel syndrome cannot be reopened. See 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 5. Entitlement to service connection for hardening of the lungs The Veteran contends that, as a result of exposure to asbestos on board a ship for four years during his active duty service, he has developed hardening of the lungs. The Veteran has not offered further explanation or argument relating to this disability. A review of the Veteran’s VA treatment records reveals the Veteran is followed for pulmonary fibrosis. However, this diagnosis, added to the Veteran’s active problem list in April 2001, is not corroborated by the other medical evidence of record. There is no treatment for pulmonary fibrosis, and any diagnostic tests used to arrive at this diagnosis are not of record. Moreover, chest x-rays performed in October 1998, July 2009, and May 2010 all revealed clear lungs and no acute cardiopulmonary pathology. By February 2015, pulmonary fibrosis had been removed from the Veteran’s active problem list. On balance, the evidence of record does not indicate a current disability of pulmonary fibrosis or other hardening of the lungs. Further, the Veteran claimed he was exposed to asbestos during service aboard the USS Kitty Hawk. The Veteran’s occupational specialty during service was as an airman, which is an occupational specialty categorized by the Navy as having minimal probable exposure to asbestos. Therefore, exposure is not conceded and evidence is necessary to prove the Veteran was exposed to asbestos; the RO requested records pertaining to possible asbestos exposure and specific jobs the Veteran performed during service. The Veteran did not offer any specific allegations regarding exposure, and his military personnel records do not reflect any incidents or job assignments during service involving asbestos exposure. Therefore, the Board finds that the evidence of record does not indicate the Veteran was exposed to asbestos during service. As such, even if the diagnosis of pulmonary fibrosis were active and verified, there is no evidence of record indicating a link to the Veteran’s military service. Therefore, service connection for hardening of the lungs is not warranted. 6. Entitlement to service connection for left and right knee disabilities The Veteran applied for service connection for left and right chronic knee pain. His VA treatment records show a diagnosis of bilateral osteoarthritis, identified by x-ray. The Veteran’s service treatment records show two complaints of knee pain during service. The first, in December 1976, involved spasms in the Veteran’s left knee, and was associated with bilateral foot pain; it was diagnosed as muscle spasm in his left thigh and he was referred to podiatry to treat the foot pain. In March 1978, the Veteran reported trauma to his left knee, which was diagnosed as a muscle bruise after the x-ray showed normal results. The Veteran was afforded a VA examination for his left knee disability in July 2010, at which a diagnosis of osteoarthritis of both knees was noted. The Veteran reported that he had been diagnosed with a knee condition, which had occurred on the flight deck and had existed since 1977. The examiner opined that the osteoarthritis of the left knee was not related to service, reasoning that the complaints of knee pain during service were minor traumas that would not have lasting consequences. The examiner further noted that the bilateral osteoarthritis was more likely caused by the Veteran’s obesity, referencing medical research showing that obesity is a significant risk factor for knee osteoarthritis. Although the July 2010 VA examination was focused on the Veteran’s left knee, the examiner performed a physical examination of both knees and offered an opinion as to both knees in addressing the cause of the current diagnosis of osteoarthritis. Given the examination report from the left knee examination, there is no indication the Veteran’s right knee disability is related to service; as such, a separate examination for the right knee disability is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran’s VA treatment records show treatment for pain management, but none of the progress notes address the cause or history of the Veteran’s bilateral osteoarthritis. The Board notes a January 1999 x-ray image showed a normal right knee with no acute displaced fractures or dislocations, and well maintained joint spaces. Once osteoarthritis was diagnosed, by x-ray in July 2009, the VA treatment records reflect treatment only for pain management. The Veteran did not offer any lay statements regarding the onset of the bilateral knee pain. The Veteran, as a lay person, is not competent to provide an opinion on a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (except in limited circumstances, a layperson is not competent to provide evidence of diagnoses); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (a layperson is competent to offer an opinion on simple medical conditions). A veteran’s conclusory statements regarding causation are insufficient to establish the necessary nexus between a current disability and in-service events. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Thus, the Veteran’s statement that his knee condition had existed since 1977 is not competent evidence regarding the etiology of the current knee disability. On the other hand, the July 2010 examiner’s opinion is both probative and persuasive. The examiner opined that the current knee disabilities are more likely due to the Veteran’s morbid obesity than to his service, and provided rationale citing medical research; obesity is a known significant risk factor for knee osteoarthritis, and the injuries noted in service to the Veteran’s left knee were not such that would or did result in long-term consequences. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (probative value of a medical opinion is derived from factually accurate, fully articulated, and soundly reasoned opinion). As the competent evidence of record addressing the nexus element does not indicate a relationship between the current bilateral knee osteoarthritis and the Veteran’s service, the Board finds service connection is not warranted for left and right knee disabilities. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran was afforded a VA examination in September 2010, at which he reported low back pain since 1976, when he injured it picking up and loading heavy equipment. The examiner opined that the current lumbar spine degenerative arthritis was less likely than not related to service based on a lack of documented complaints of low back pain. In other words, the examiner appeared to impermissibly dismiss the Veteran’s otherwise competent and credible reports of continuous back problems solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Further, the examiner was not asked to consider complaints of thoracic spine pain and the diagnosis of degenerative disc disease of the thoracic spine. Therefore, a new examination is necessary to obtain an adequate opinion regarding the relationship between the Veteran’s in-service complaints of back pain and his current back disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. The Board notes that the Veteran’s VA treatment records contain diagnoses of several psychiatric disorders, including depression, schizophrenia, and psychosis. A May 2014 progress note indicates the Veteran reported his depression was due to his current health status. Further, his service treatment records include a notation of an anxiety reaction in January 1980, and report of dreams and hallucinations interfering with sleep in conjunction with feeling nervous and uptight in June 1977. As there is an indication the Veteran’s current psychiatric disability might be related to service or to service-connected disabilities, an examination is necessary to determine the current diagnoses and whether these are related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine whether the thoracolumbar spine disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner may not dismiss the Veteran’s contentions regarding symptoms solely on the basis that they are not documented in contemporaneous medical records. The examiner should address any other pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Schedule the Veteran for an examination with an appropriate clinician to determine whether any acquired psychiatric disorder is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found. For each psychiatric disorder identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disorder began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the disorder is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disorder) by the Veteran’s service-connected disabilities. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the psychiatric disorder prior to aggravation by the service-connected disabilities. The examiner is reminded that personality disorders are not diseases or injuries for compensation purposes, but disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. In addressing the above issues, the examiner should consider the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including the Veteran’s May 2014 report that his depression was due to his current health status and the notations in the Veteran’s service records regarding an anxiety reaction, dreams and hallucinations, and feeling nervous and uptight. In particular, the examiner must opine whether it is at least as likely as not that the in-service notations represent the initial manifestation of any current acquired psychiatric disabilities. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel