Citation Nr: 18145481 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-02 233 DATE: October 30, 2018 ORDER New and material evidence has not been received sufficient to reopen the previously denied claim of entitlement to service connection for sleep apnea; as such, the appeal is denied. New and material evidence having been submitted, the previously denied claim of entitlement to service connection for an adjustment disorder with depressed mood is reopened. Service connection for an adjustment disorder with mixed anxiety and depressed mood is granted. REMANDED Entitlement to service connection for a right hip condition, to include as secondary to the service-connected lumbar spine spondylosis and degenerative disc disease (DDD), is remanded. Entitlement to service connection for toes, to include as secondary to the service-connected lumbar spine spondylosis and DDD, is remanded. Entitlement to a rating in excess of 20 percent prior to February 1, 2011, and a rating in excess of 40 percent from February 1, 2011, for the service-connected lumbar spine spondylosis and DDD, is remanded. Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome (IDS) of the right leg, associated with the service-connected lumbar spine spondylosis and DDD, is remanded. Entitlement to a rating in excess of 20 percent for IDS of the left leg, associated with the service-connected lumbar spine spondylosis and DDD, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In a February 2014 rating decision, the Regional Office (RO) denied service connection for sleep apnea. The Veteran was notified of the decision, but did not appeal and it became final. 2. New evidence has been received since the final February 2014 rating decision that does not relate to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for sleep apnea, and does not raise a reasonable possibility of substantiating the claim. 3. In a May 1990 rating decision, the RO denied service connection for an adjustment disorder with depressed mood. The Veteran was notified of the decision, but did not appeal and it became final. 4. New evidence has been received since the final May 1990 rating decision which relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for an adjustment disorder, and which raises a reasonable possibility of substantiating the claim. 5. Resolving reasonable doubt in favor of the Veteran, his adjustment disorder with mixed anxiety and depressed mood is likely related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the final February 2014 rating decision; accordingly, the claim for service connection for sleep apnea is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received since the final May 1990 rating decision, and the claim for service connection for adjustment disorder with depressed mood is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. The Veteran’s adjustment disorder with mixed anxiety and depressed mood was incurred in active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1988 to November 1989. As an initial matter, the Board notes that as of May 2016, the Veteran has been represented by a private attorney (as listed above). The issues presently on appeal were certified to the Board in May 2018 and June 2018. In September 2018, the private attorney sent a letter notifying VA he no longer represented the Veteran, and that the Veteran had been notified of his withdrawal from the case. However, an agent may not withdraw representation of a veteran after the certification of the appeal to the Board, absent a showing of good cause on motion. 38 C.F.R. § 20.608(b)(2). As the Veteran has not revoked this power of attorney and has not appointed a new representative, and the private attorney did not make an appropriate motion under 38 C.F.R. § 20.608, the Board continues to recognize him as the Veteran’s representative. New and Material Evidence To reopen a claim following a final decision, new and material evidence must be received. 38 U.S.C. § 5108. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material has been submitted to reopen the claim for service connection for sleep apnea. In a February 2014 rating decision, the RO denied service connection for sleep apnea, based on findings that the Veteran’s sleep apnea was not shown in service, nor was there a link shown between his current sleep apnea and service. The Veteran was notified of the February 2014 rating decision, but did not appeal or submit new and material evidence within one year of that decision, and that decision is the last final disallowance of the claim for service connection for sleep apnea. The evidence of record at the time of the February 2014 rating decision included service treatment records (STRs), which showed no report or finding of sleep apnea, and private treatment records, which showed that the Veteran’s sleep apnea was diagnosed in 2009. Evidence submitted after the February 2014 rating decision includes VA and private treatment records which are new and show ongoing treatment for sleep apnea, but do not provide any competent evidence related to whether the Veteran’s sleep apnea may be related to service. Therefore, this evidence would not reasonably substantiate the claim, were the claim for service connection for sleep apnea be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, supra. New and material evidence to reopen the claim for service connection for sleep apnea has not been received and the claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In reaching this decision, the Board recognizes that the below remand includes instructions to obtain the Veteran’s Social Security Administration (SSA) records. However, this development is based on his report that he was awarded SSA disability benefits for his lumbar spine and related conditions/symptoms. There is no indication that any SSA records would be relevant to the claim for sleep apnea; therefore, a remand of this issue is not necessary. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). 2. Whether new and material evidence has been submitted to reopen the claim for service connection for adjustment disorder with depressed mood In a May 1990 rating decision, the RO denied service connection for an adjustment disorder with depressed mood, essentially based on findings that the Veteran was treated for a mental condition in service that had resolved and there was no showing that he had a current, chronic mental condition that was related to his military service, to include the adjustment disorder with depressed mood diagnosed in service. The Veteran did not appeal this rating decision or submit new and material evidence within one year of that decision, and it became final. The evidence of record at the time of the May 1990 rating decision included STRs and the report from a VA examination dated in April 1990. STRs showed the Veteran was hospitalized November 2–7, 1989, for evaluation of suicidal ideation. He participated in group and individual therapy with good resolution of his depression and improvement in his affect and mood. His discharge diagnoses included adjustment disorder with depressed mood and personality disorder, NOS. He was to be discharged back to the Navy hospital with the recommendation he be administratively separated from service on the basis of personality disorder. It was noted that on discharge from the hospital he indicated he would be a danger to himself or to others if kept in the U.S. Navy, but that he was not currently suicidal or psychotic. On the April 1990 VA examination, the diagnoses included adjustment disorder with mixed emotional features, and some suggestion of personality traits. Evidence received since the May 1990 RO rating decision consists of a VA Form 21-0960P-2 (Mental Disorders DBQ) completed by a private psychologist in February 2017, VA treatment records, and statements from the Veteran. On the February 2017 Mental Disorders DBQ, completed by a private psychologist, H.H-G., Ph.D., it was noted that the Veteran’s diagnosis was adjustment disorder with mixed anxiety and depressed mood. Dr. H-G. opined that the Veteran had an adjustment disorder that more likely than not began in service, had continued uninterrupted to the present, and was aggravated by his bladder dysfunction, internal hemorrhoids, IDS of the right and left legs, and lumbar spine spondylosis. In reviewing the evidence of record since May 1990, the Board concludes that the February 2017 opinion from Dr. H-G. is new and material as it specifically relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. The claim for service connection for adjustment disorder is therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Veteran essentially contends he has a current psychiatric condition that has been medically related to his service. As noted above, STRs show he was hospitalized in service in November 1989, for evaluation of suicidal ideation, and his hospital discharge diagnoses included adjustment disorder with depressed mood. Post-service VA treatment records show that the Veteran has been treated for an adjustment disorder and major depressive disorder; thus, he has a current disability. As noted above, in February 2017, a private psychologist, Dr. H-G., opined that the Veteran had an adjustment disorder that more likely than not began in service, had continued uninterrupted to the present, and was aggravated by his bladder dysfunction, internal hemorrhoids, intervertebral disc syndrome of the right and left legs, and lumbar spine spondylosis. The Board finds that Dr. H-G.’s opinion is supported by adequate rationale, refers to pertinent evidence in the claims file, and notes the significance of relevant medical journal articles. The Board also notes there is minimal evidence to the contrary. Thus, resolving any reasonable doubt in the Veteran’s favor, service connection for adjustment disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a right hip condition, toes of the left foot, and PTSD; and entitlement to increased ratings for service-connected lumbar spine with DDD, IDS of the right leg, and IDS of the left leg. Regarding the remaining issues on appeal, remand is required to obtain SSA records. See 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Review of the record shows that the Veteran contends that his service-connected lumbar spine disability and related conditions prevent him from working, and more recent evidence suggests his psychiatric problems impact his ability to work. The record reflects that he stopped working as a teacher in June 2013, and that a private physician at that time completed paperwork indicating the Veteran was permanently disabled due to his lumbar condition and related leg pathology and symptoms. Subsequently, the Veteran reported receiving disability benefits from SSA. Of record is a copy of an SSA inquiry dated in March 2015, on which there is an entry for “LAF” showing “Denied Claim.” However, there are no SSA records associated with the claims file and the record does not reflect that the Agency of Original Jurisdiction (AOJ) attempted to obtain such records. The matters are REMANDED for the following action: Request from SSA complete copies of any determination on a claim filed by the Veteran for disability benefits from that agency, together with the medical records that served as the basis for any such determination. If the search for these records is negative, that should be documented in the claims file. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Casula, Counsel