Citation Nr: 18145470 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-31 067 DATE: October 29, 2018 ORDER 1. Whether new and material evidence has been received to reopen a claim of service connection for a stomach disability is granted. REMANDED 2. Entitlement to service connection for sleep apnea is remanded. 3. Entitlement to a rating in excess of 30 percent for status post right total knee arthroplasty, (TKA) is remanded. 4. Entitlement to a compensable rating for a right TKA scar is remanded. 5. Entitlement to a rating in excess of 10 percent for left knee meniscal tear with degenerative joint disease (DJD) is remanded. 6. Entitlement to a rating in excess of 10 percent for right foot hallux valgus is remanded. 7. Entitlement to a compensable rating for left foot hallux valgus is remanded. 8. Entitlement to a rating in excess of 20 percent for lumbar paravertebral fibromyositis is remanded. 9. Entitlement to a rating in excess of 70 percent for anxiety disorder is remanded. 10. Entitlement to service connection for a stomach disability (on de novo review) is remanded. FINDINGS OF FACT 1. An unappealed August 1994 rating decision denied the Veteran service connection for a stomach disability based essentially on a finding that a current stomach disability was not shown. 2. Evidence received since the August 1994 rating decision shows that the Veteran has a diagnosis of a stomach disability; relates to an unestablished fact necessary to substantiate the claim of service connection for a stomach disability; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received and the claim of service connection for a stomach disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1967 to October 1969 and from April 1979 to January 1990. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. 1. The appeal to reopen a claim of service connection for a stomach disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New and material evidence is defined by regulation. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. See 38 C.F.R. § 3.156 (a). The Court has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). An August 1994 rating decision denied the Veteran service connection for a stomach disability based essentially on a finding that such disability was not shown (on May 1990 VA examination). He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, it became final. 38 U.S.C. § 7105. The evidence of record at the time of the August 1994 rating decision included the Veteran’s service treatment records (STRs), VA treatment records, and lay statements by the Veteran, (and a report of May 1990 examination). A January 1985 STR notes that the Veteran reported stomach pain that lasted for 2 weeks which manifested as a burning sensation that becomes constant after meals. A November 1988 STR notes that the Veteran reported stomach trouble and indigestion. On May 1990 VA examination, a stomach disability was not shown. Evidence received since the August 1994 rating decision includes VA and private treatment records, and lay statements by the Veteran. An April 2009 VA treatment record notes that Omezaprole was prescribed for gastroesophageal reflux disease (GERD). September 2009 to May 2016 VA treatment records note treatment for GERD. Because service connection for a stomach disability was previously denied based on a finding that a current stomach disability was not shown, for evidence to be new and material in this matter, it would have to show that the Veteran has a stomach disability that might be related to his service or to a service connected disability. September 2009 to May 2016 VA treatment records note a diagnosis of, and treatment for, GERD. This evidence pertains to a fact necessary to substantiate a claim of service connection for a stomach disability and raises a reasonable possibility of substantiating such claim. Accordingly, the additional evidence received is both new and material, and the claim of service connection for a stomach disability may be reopened. REASONS FOR REMAND 2. Entitlement to service connection for sleep apnea is remanded. Service connection for sleep apnea has been denied based on a finding that while such disability was diagnosed in 2009 it was not shown to be related to the Veteran’s service. In a May 2016 statement, the Veteran’s attorney raised an alternate theory of entitlement (that the sleep apnea is secondary to the Veteran’s service-connected psychiatric disability). Such theory has not been adequately addressed in a medical opinion, or considered by the Agency of Original Jurisdiction (AOJ). An examination to obtain a medical advisory opinion in the matter, and adjudication that addresses the secondary service connection theory of entitlement are necessary. 3., 4., 5. Entitlement to a rating in excess of 30 percent for post TKA right knee disability, a compensable rating for a right TKA scar, and a rating in excess of 10 percent for left knee meniscal tear with DJD, is remanded. In a May 2016 statement, the Veteran’s representative asserted that the most recent, March 2016, VA examination does not adequately reflect the current severity of the service connected disabilities. The Regional Office (RO) failed to address the attorney’s contentions (i.e. did not note review of the May 2016 statement in the May 2016 statement of the case (SOC), did not arrange for new examinations, or issue a supplemental SOC). In light of the length of intervening period since he was last examined by VA (March 2016, more than 2.5 years ago) and the allegation of worsening, a contemporaneous examination to assess the disabilities is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Further, the most recent VA knee treatment records in the claims file are dated in December 2016 and note ongoing right knee treatment, complaints of knee weakness, and that several weeks of bilateral knee treatment were scheduled. 6., 7., 8. Entitlement to a rating in excess of 10 percent for right foot hallux valgus, a compensable rating for left foot hallux valgus, and a rating in excess of 20 percent for lumbar paravertebral fibromyositis, is remanded. In a May 2016 statement, the Veteran’s representative asserted that the most recent, August 2013, VA examination does not adequately reflect the current severity of the Veteran’s lumbar spine and right and left foot hallux valgus disabilities. Given the length of the intervening period since he was last examined and the allegation of worsening since, a contemporaneous examination to assess the disabilities is necessary. 9. Entitlement to a rating in excess of 70 percent for anxiety disorder is remanded. In a May 2016 statement, the Veteran’s representative asserted that the most recent, August 2013, VA examination does not adequately reflect the current severity of the Veteran’s anxiety disorder. Given the length of the intervening period since he was last examined and the allegation of worsening since, a contemporaneous examination to assess the disability is necessary. 10. Service connection for a stomach disability (on de novo review) is remanded. A January 1985 STR notes that the Veteran reported stomach pain and a burning sensation that became constant after meals for 2 weeks. A November 1988 STR notes that he reported stomach trouble and indigestion. In an April 1991 statement, the Veteran reported that he received treatment for stomach problems at the San Juan, Puerto Rico VAMC. There is no medical opinion in the record that explains why the stomach problems the Veteran had in service were not early manifestations of the GERD that was diagnosed in 2009. An examination to determine the nature and likely etiology of the Veteran’s stomach disability is necessary. The most recent VA treatment records in the claims file are from January 2017. Updated records of VA treatment for a stomach disability are pertinent evidence, and are constructively of record. The matters are REMANDED for the following: 1. Secure for the record the complete clinical records (any not already associated with the claims file) of all VA evaluations or treatment the Veteran has received for sleep apnea, right and left knee disabilities, a right knee scar, right and left foot disabilities, a back disability, anxiety disorder, and a stomach disability (to specifically include records from the San Juan, Puerto Rico VAMC from January 1991 to 2000). 2. Arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his sleep apnea. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Based on examination and interview of the Veteran and review of his record, the examiner should provide an opinion that responds to the following: (a) Identify the likely etiology for the Veteran’s sleep apnea (diagnosed in 2009). Specifically, is it at least as likely as not (a 50 percent or better probability) that it is related directly to his service (as due to disease, injury, or event, or by onset, therein)? (b) If the sleep apnea is found to not be directly related to his service, opine further whether it is at least as likely as not (a 50% or greater probability) that such disability was caused or aggravated by (increased in severity due to) the Veteran’s service-connected psychiatric disability. [The opinion must address aggravation.] (c) If it is found that the service-connected psychiatric disability did not cause, but aggravated, the sleep apnea, specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. The examiner should include rationale with all opinions. 3. Then arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected right (with scar) and left knee disabilities, right and left foot disabilities, and low back disability. The Veteran’s record (to include this remand and all records received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should: (a) Assess the current severity of the Veteran’s disabilities of each knee. [The examiner must be provided the criteria for rating knee disabilities, and the findings noted should include the information needed to rate the disabilities under the appropriate criteria for rating knee disabilities.] Regarding the left knee, findings reported must include complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, etc.). The examiner should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. The examiner should indicate whether there is related subluxation or instability (and, if so, the severity of such); whether the knee is ankylosed (and if so, the position of ankylosis); whether there is dislocated (or post-removal) semilunar cartilage (noting frequency of any episodes of locking, pain and effusion in the joint). All clinical findings should be reported in detail. Regarding the right knee the examiner should note whether there are chronic TKR residuals consisting of severe painful motion or weakness. It should also be noted whether the TKA scar is painful, tender, unstable, or causes any functional limitations. (b) Assess the current severity of the Veteran’s service-connected low back disability. [The examiner must be provided a copy of the criteria for rating spine disabilities in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (and the notes following) and § 4.59], and the findings noted should include all information needed to rate the disability under the criteria for rating disabilities of the spine. The findings must include complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, etc.). Specifically noted should be whether the low back is ankylosed (and if so, the position of ankylosis; and whether there are neurologic manifestations other than peripheral neuropathy of the right and left lower extremities-which are already separately rated), and if so their nature and severity. Indicate also whether or not there have been incapacitating episodes of disc disease (periods of bed rest prescribed by a physician), and if so, note their frequency and duration). (c) Assess the severity of the Veteran’s service- connected right and left foot hallux valgus disabilities. The entire record and the criteria for rating hallux valgus (under 38 C.F.R. § 4.71a, Code 5280) should be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination and interview of the Veteran, complete findings (and functional impairment) related to the disability should be described in detail. All indicated studies must be completed. The examiner should comment on any restrictions on occupational and daily activity functions due to the disability. The examiner must include rationale with all opinions 4. Arrange for a psychiatric examination of the Veteran to assess the severity of his anxiety disorder. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review the 38 C.F.R. § 4.130 criteria for rating mental disorders, and should note the presence or absence of each symptom listed in the criteria for a 100 percent rating (and any symptoms of similar gravity found that are not listed). The examiner should also (based on review of the record and interview and examination of the Veteran) offer an opinion regarding the functional impact the Veteran’s anxiety has on his employability, identifying any types of employment that would rendered infeasible by the anxiety. The examiner must include rationale with all opinions. 5. Arrange for a gastrointestinal (GI) diseases examination of the Veteran to ascertain the nature and likely etiology of his current GI disabilities. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each GI disability entity found/shown by the record (to include GERD). (b) Identify the likely etiology for each GI disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated by, the Veteran’s service? If not, was it caused or aggravated by an already service-connected disability? The examiner must explain the rationale for all opinions. The rationale should include some discussion regarding the relevance, if any, of the GI complaints in service noted above. If the disability is found to be unrelated to service, the examiner should identify the etiology considered more likely. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel