Citation Nr: 18145776 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-25 988 DATE: October 30, 2018 ORDER The petition to reopen the previously denied claim for service connection for a left knee disability is granted. The petition to reopen the previously denied claim for service connection for a low back disability is denied. Service connection for sleep apnea is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. An unappealed March 2009 rating decision denied service connection for a left knee disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. An unappealed March 2009 rating decision denied service connection for a low back disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that, while new, is not material since it does not relate to an unestablished fact necessary to reopen the claim. 3. The preponderance of the evidence is against finding that sleep apnea began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The March 2009 rating decision denying the claim for service connection for a left knee disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.104, 3.156(a), 20.1103. 2. The March 2009 rating decision denying the claim for service connection for a low back disability is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.104, 3.156(a), 20.1103. 3. The criteria for service connection for sleep apnea are not 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 The Veteran served on active duty from November 1984 to November 2008. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a Veteran must show “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b) (2012). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. New and material evidence having been submitted for the left knee disability. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. A March 2009 rating decision denied the Veteran service connection for a left knee disability based on a lack of a clinically diagnosed disability. The Veteran failed to file a timely notice of disagreement, and no new and material evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per § 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence presented since the last final denial in the March 2009 rating decision includes lay statements and updated medical treatment records. The treatment records indicate a diagnosis of mild degenerative joint disease and bursitis. This evidence is new and material as they were not of record at the time of the last rating decision in 2009. The diagnosis was not previously considered by agency decision makers and directly addresses a fact necessary to substantiate the claim. The low threshold to reopen has been met so claim of service connection for left knee disability is reopened. 38 U.S.C. § 5108. 2. New and material evidence having been submitted for a lower back disability. The Veteran contends that his lower back pain is secondary to his cervical spine disability. A March 2009 rating decision denied the Veteran service connection for lower back pain based on a lack of clinical diagnosis. In a March 2009 letter, the RO notified the Veteran of that decision and how to appeal. Because the Veteran did not appeal this decision and VA did not receive new and material evidence prior to expiration of the appeal period, the March 2009 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.201, 20.302, 20.1103. The evidence presented since the March 2009 rating decision includes various lay and medical evidence. Medical records note lower back pain from a lifting incident in 2010 and noted that flexion/extension were within normal limits in June 2011 and January 2013. Several notations from April 2014, August 2015, and January 2016 appointments indicate that the Veteran denied any back pain. Additionally, there was no indication in medical records that the Veteran was diagnosed with a lower back disability. The February 2015 VA examiner also found no objective evidence of the claimed low back disability. The Board also notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under § 1110, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (2018). However, even in light of Saunders, the Veteran still does not have a present disability for his lower back as he does not have a diagnosis, and the examiner noted that his pain did not result in any functional loss or functional impairment. Based on such evidence, the Board finds that this case is distinguished from Saunders. In summary, although the recent evidentiary submissions are new insofar as they were not previously of record or considered, this evidence is not material since it does tend to show that the Veteran has a current lower back disability or persistent symptoms of a back disability. As such, the prior evidentiary defect is not cured and the petition to reopen is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). 3. Service connection for sleep apnea. The Veteran contends that his sleep apnea manifested while he was on deployment. 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 competent evidence shows a current diagnosis of sleep apnea, to include a May 2014 statement from Dr. A.K. (noting a diagnosis based on symptoms and polysomnogram from June 2012) and a February 2015 VA examination report. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, 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 Board notes that two pieces of competent medical evidence address the etiology of the Veteran’s sleep apnea. As discussed next, the Board gives more probative weight to the February 2015 VA examiner’s opinion. The February 2015 VA examiner opined that the Veteran’s sleep apnea was less likely as not related to an in-service injury, event, or disease. The examiner reviewed the claims file as well as the buddy statements submitted to support the claim. The rationale was that throughout the Veteran’s active service, there was no complaint or treatment of sleep apnea. It was also noted that he had gained forty-five pounds since his separation. Additionally, there were four years in between separation of service until his diagnosis. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. A.K. opined that it was likely that the sleep apnea evolved during his time on active duty. A rationale for the opinion that the Veteran’s sleep apnea is link to active service was not provided. Without a rationale, the Board finds this private opinion to be less probative than the VA examiner’s opinion. Additionally, the scant opinion does not reflect knowledge of pertinent medical and lay evidence. Instead, the opinion appears to be based on the Veteran’s self-reported medical history, which are inconsistent with service treatment records that show that the Veteran never complained of symptoms of sleep apnea. The foregoing is another reason for assigning low weight to this private opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes the lay statements submitted by the Veteran, his wife, and his ex-roommate in-service. The Veteran stated that his sleep apnea developed after being stationed overseas. His former roommate stated that the Veteran snored heavily, was short of breath, and appeared to have fatigue problems. His wife indicated that his sleeping problems caused him to be exhausted. The Board acknowledges the above lay evidence, but finds that it is refuted by the evidence of record. Service treatment records do not reflect complaint, treatment, or diagnosis of sleep apnea. Reports of medical history from May 1990, March 2000, August 2005, and March 2008 reflect that the Veteran denied having frequent trouble sleeping. The Board affords more weight and credibility to the Veteran’s reports made in active service than those currently asserted to support his claim. Private treatment records show the Veteran was not diagnosed with sleep apnea until June 2012, about four years after his separation from service. While the Veteran, his family, and former roommate are competent to report having experienced or observed symptoms, such as fatigue and snoring since service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea. They have not been shown to have the skills, training, or experience to diagnosis a sleep disorder or analyze its origins. Indeed, this issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, interpretation of complicated diagnostic medical testing, and knowledge of sleep medicine. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, their statements as to a diagnosis or etiology are not competent and lack weight. The Board gives more probative weight to the VA opinion of record as the examiner has had medical training, examined the Veteran, reviewed his history, and provided a rationale for the negative opinion. Considering all of the above, the Board finds that the preponderance of the evidence is against any causative nexus between the Veteran’s in-service deployment, or other in-service events, and his currently diagnosed sleep apnea. Hence, the claim is denied. 38 C.F.R. § 3.303. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran’s claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). REASONS FOR REMAND 1. Service connection for a left knee disability is remanded. The Veteran contends that his left knee disability is due to high impact landings from jumping as a member of the Airborne Infantry Regiment. Alternatively, he also asserts it may be due to his service-connected right knee disability. He was denied service connection for his left knee disability based on a lack of clinical diagnosis. The Board notes that the February 2015 examiner did not review the most recent x-ray from May 2014. In this regard, the VA examiner only noted normal x-rays from 2008. However, the May 2014 x-ray, as well as other medical records, indicate mild osteoarthritis and bursitis of the left knee. As such, an addendum opinion should be obtained that takes the diagnosis into account. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of his left knee disability. The examiner is to address the following: (a) Whether any diagnosed left knee disability is at least as likely as not related to the Veteran’s period of active service, to include impact from airborne assignments. (b) Whether it is at least as likely as not (50 percent or greater probability) that the left knee disability is proximately due to his service-connected right knee disability. (c) Whether it is at least as likely as not (50 percent or greater probability) that the left knee disability has been aggravated (i.e., worsened beyond the normal progression of that disease) beyond its natural progression by his service-connected right knee disability. (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel