Citation Nr: 18146248 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 14-41 035 DATE: October 31, 2018 ORDER New and material evidence having been received, the issue of entitlement to service connection for asthma is reopened; to that extent only, the appeal is granted. New and material evidence having been received, the issue of entitlement to service connection for sleep apnea is reopened; to that extent only, the appeal is granted. Service connection for a left ankle disability, to include residuals of Achilles tendonitis, is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded Entitlement to service connection for residuals of a left 4th toe fracture is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A May 2006 rating decision denied service connection for asthma and sleep apnea; the Veteran did not timely appeal the denial of these issues, and no new and material evidence was submitted within the one-year appeal period following the issuance of that rating decision. 2. Evidence received after the expiration of the appeal period includes evidence that is not cumulative and redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claims of entitlement to service connection for asthma and sleep apnea. 3. After resolving reasonable doubt in favor of the Veteran, the left ankle disability, currently diagnosed as residuals of achilles tendon sprain/tendonitis, status post left Achilles tendon tear and resulting surgeries, had its onset in service. CONCLUSIONS OF LAW 1. The May 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 2. The criteria for reopening the claims of entitlement to service connection for asthma and sleep apnea, based on receipt of new and material evidence, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for left ankle disability, currently diagnosed as residuals of achilles tendon sprain/tendonitis, status post left Achilles tendon tear and resulting surgeries, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1975 to November 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2006, the RO issued a rating decision that denied the Veteran’s claims seeking entitlement to service connection for asthma and for sleep apnea. In its March 2009 rating decision, the RO indicated that the Veteran’s claims seeking entitlement to service connection for asthma and sleep apnea included the threshold question of whether new and material evidence had been submitted, as there was a prior denial of the claims in a May 2006 rating decision. The RO further indicated that the Veteran’s original claims file had been lost or destroyed and that, to the extent possible, his claims file had been rebuilt. The RO noted that efforts to locate the original claims file, to include the Veteran’s service treatment records, were ongoing and that if these records were located later, the issues would be reconsidered. A review of the claims file (now electronically stored in the Veterans Benefits Management System) reveals that numerous service treatment records were uploaded to the electronic database on July 25, 2013. These service records do not show any complaints, treatment, or diagnosis regarding asthma or sleep apnea during service. Therefore, the records are not relevant to the claims for service connection for asthma and sleep apnea, and therefore, the threshold question of whether new and material evidence has been submitted must still be addressed for that claim. See 38 C.F.R. § 3.156(c). Additionally, the Board notes that the Veteran is already service-connected for bronchitis. Therefore, the claims on appeal is properly characterized as entitlement to service connection for asthma and entitlement to service connection for sleep apnea rather than entitlement to service connection for a respiratory disorder, to include asthma and sleep apnea. See Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for asthma. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. Generally, if a claim for 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. “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “Material” evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran is seeking to reopen his claims of entitlement to service connection for asthma and sleep apnea. These claims were originally denied in a May 2006 rating decision. Both claims were denied because the service treatment records on file at that time failed to show a chronic asthma or sleep apnea disabilities resulting from his military service. The Veteran did not perfect a timely appeal as to the rating decision, nor did he submit new and material evidence within one year; therefore, the rating decision became final. In December 2008, the Veteran submitted a request to reopen his claims of entitlement to service connection for asthma and sleep apnea. In its March 2009 rating decision, the RO denied the Veteran’s request to reopen his claims after determining that new and material evidence had not been submitted. Regardless of whether the RO has determined that new and material evidence has been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’d, 8 Vet. App. 1 (1995)). Evidence associated with the record since the final May 2006 rating decision includes VA treatment records, a July 2014 VA examination report, and lay statements from the Veteran and his wife in support of his claims. This evidence is “new” because it was not of record at the time of the prior final rating decision. This evidence is “material” as it raises a reasonable possibility of substantiating the asthma and sleep apnea claims on appeal. As discussed below, this evidence suggests that a possible relationship exists between the Veteran’s current asthma and sleep apnea and his military service. See Shade, 24 Vet. App. at 110. Thus, the additional evidence, at a minimum, triggers additional assistance to the Veteran. The Board finds that new and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for asthma and sleep apnea. These claims are reopened and will be addressed in the Remand section below. 3. Entitlement to service connection for a left ankle disability, to include residuals of Achilles tendonitis. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. The Veteran contends that he had Achilles tendonitis of the left ankle while he was in the military. He further states that this condition has continued ever since his military service. The service treatment records reference a diagnosis of what appears to be left ankle tendonitis in April 1976. The Veteran was given the following physical restrictions: NO running, PC, drills, marching, pushups, or prolonged standing. In January 1978, he presented for treatment with complaints of pain in the Achilles area. He was assessed as having a weak Achilles tendon. The Veteran underwent a private orthopedic evaluation in January 2010. In the corresponding report, G.V., MD, noted that the Veteran had first presented for treatment of a left Achilles tendon rupture in June 2008. Dr. G.V. indicated that, prior to starting treatment, the Veteran had experienced a popping sensation in the left Achilles tendon. The Veteran described the popping sensation as recurrent and he indicated that it resulted in the development of increased pain and weakness. An MRI at that time confirmed an Achilles tendon rupture and the Veteran was noted to have had Achilles tendonitis for many years. Dr. G.V. noted that the Veteran underwent a surgical repair in June 2008 but that that his condition was complication by a dehiscence of the wound within two months of the surgery. Dr. G.V. indicated that the Veteran underwent repeat surgery with bone grafting done in September 2008. Dr. G.V. indicated that the second surgery was complicated by a wound infection which required debridement, additional treatment, and ultimately a skin graft. Dr. G.V. noted that the Veteran was having another repeat skin grafting procedure in the near future. Based on a review of the available medical and lay evidence, Dr. G.V. then rendered a medical opinion in support of the Veteran’s claim. Specifically, Dr. G.V. noted that the Veteran’s service treatment records were unavailable for review. However, Dr. G.V. also noted that if the service treatment records documented a history of Achilles tendonitis while in the military, then that would place the Veteran at increased risk for a rupture of the Achilles tendon in the future. Dr. G.V. opined that, if Achilles tendonitis was diagnosed during service, it was possible that the current rupture was either directly or indirectly related to his previous Achilles tendonitis that occurred while he was on active duty. Specifically, Dr. G.V. asserted that if such records existed, “I would be able to support a connection in that his current Achilles rupture is more likely than not related to his previous Achilles tendonitis by way of a markedly increased risk of Achilles rupture that [often] occurs with Achilles tenonitis.” In July 2014, the Veteran was afforded a VA ankle examination. The VA examiner noted that the Veteran had residuals of achilles tendon sprain/tendonitis, status post left Achilles tendon tear and resulting surgeries, that were manifested by less movement than normal and pain on movement. The examiner opined that the Veteran’s residuals of Achilles tendonitis were “less likely than not” incurred in or caused by his military service because the examiner could not find any evidence of Achilles tendon complaints in the service treatment records and because the Veteran admitted that his Achilles tendon had ruptured after his military service. At a minimum, the evidence is at least in equipoise as to whether the currently diagnosed left ankle disability is due to his military service. While the July 2014 VA examiner provided a negative nexus opinion against the Veteran’s claim, the Board finds that the VA examiner’s rationale contradicts the evidence of record. As previously noted, the available service treatment records reference a diagnosis of what appears to be left ankle tendonitis in April 1976. The Veteran was given the following physical restrictions: NO running, PC, drills, marching, pushups, or prolonged standing. In January 1978, he presented for treatment with complaints of pain in the Achilles area. He was assessed as having a weak Achilles tendon. Moreover, the VA examiner’s opinion does not explain why the post-service left Achilles tendon rupture is not related to the Veteran’s military service or address the Veteran’s lay statements about experiencing Achilles tendonitis during service. In direct contrast, the Veteran’s treating physician, Dr. G.V., provided a positive nexus opinion linking the Veteran’s residual left ankle Achilles tendon disability with his military service. Dr. G.V. asserted that if the Veteran had been diagnosed with Achilles tendonitis in service, “I would be able to support a connection in that his current Achilles rupture is more likely than not related to his previous Achilles tendonitis by way of a markedly increased risk of Achilles rupture that [often] occurs with Achilles tenonitis.” Accordingly, service connection for a left ankle disability is warranted. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Entitlement to service connection for 1) a left knee disability; 2) a right foot disability; 3) a left foot disability; 4) residuals of a left 4th toe fracture; 5) asthma; and 6) sleep apnea. As an initial matter, the Board is entitled to assume the competence of a VA examiner and the adequacy of a VA medical examiner’s opinion unless either is challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). In his October 2014 substantive appeal (VA Form 9), the Veteran asserted that the July 2014 VA examiner was rude to him, made inappropriate comments about his military service, and yawned throughout the examination. The Veteran also suggested that the attitude of the examiner called into question the reliability of what he documented in the examination report. Here, the Veteran has challenged the adequacy of the examination and resulting medical opinions. He has not challenged the examiner’s competence. Nevertheless, the Board finds that additional development is necessary before the following claims can be properly adjudicated: Left Knee Disability The July 2014 VA examiner diagnosed the Veteran as having a history of a left knee strain that was diagnosed in 1987. Thereafter, the examiner opined that the Veteran’s left knee condition was “less likely than not” incurred in or caused by his military service. The only rational provided was that the examiner was only able to find once instance of left knee pain while in the military and that the “exam was relatively benign. The Veteran has asserted that he has chronic knee pain. However, it remains unclear from the July 2014 examination report whether the Veteran has a current left knee disability; and if so, whether that disability is related to his military service and any incident of service. Therefore, the RO should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any left knee disability found during that evaluation. Left and Right Foot Disabilities, and Residuals of a Left 4th Toe Fracture The July 2014 VA examiner opined that the Veteran’s bilateral plantar fasciitis, left foot tendonitis, and residuals of a left 4th toe fracture were “less likely than not” incurred in or caused by his military service. Specifically, the examiner noted that the Veteran had a history of plantar fasciitis documented once while in the military but that plantar fasciitis was not found on the current evaluation. The examiner further noted that he was unable to find evidence of left foot tendonitis while in the military or on current evaluation. Finally, the examiner indicated there was evidence of a left 4th toe sprain (rule out fracture) in the military but that the Veteran does not have any current residual toe pain on evaluation. On his October 2014 substantive appeal to the Board (VA Form 9), the Veteran stated that he had feet problems in service and that he was currently undergoing treatment his feet with a private doctor. He also indicated that he fractured his left 4th toe during his military service and that, even if this fracture healed, the initial injury occurred in service and resulted in residual pain. He noted that he was in the process of obtaining a copy of medical records that would support his contentions. The RO should contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for bilateral feet or left 4th toe. If such records are identified, then obtain those records and associate them with the electronic claims file. Thereafter, the RO should schedule the Veteran for appropriate VA examinations to ascertain the nature and etiology of any foot and left 4th toe disabilities (or residual disabilities) found on evaluation. For any current foot or left toe disabilities found on evaluation, the examiner must opine as to whether those disabilities are related to the Veteran’s military service. Additionally, the Board notes that the July 2014 VA examiner diagnosed the Veteran as having bilateral pes planus prior to entering the Air Force. Therefore, the examiner who conducts the new evaluation should opine as to whether that bilateral pes planus clearly and unmistakably preexisted the Veteran’s military service and whether it was aggravated by service or was otherwise attributable to service. Asthma The July 2014 VA examiner opined that the Veteran’s asthma is “not incurred in the military as this provider was UNABLE to find [a diagnosis] or [treatment] for asthma during or after the military per . . . [a review of the medical records].” The Veteran’s post-service medical records provide conflicting evidence regarding whether he currently has asthma. On his October 2014 substantive appeal to the Board (VA Form 9), the Veteran stated that he suffered from asthma during his military service and that he has continued to receive medical treatment for that condition. He noted that he was in the process of obtaining a copy of medical records that would support his contentions. The RO should contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his asthma. If such records are identified, then obtain those records and associate them with the electronic claims file. Thereafter, schedule the Veteran for a VA examination to ascertain whether he has asthma, and if so, whether that asthma is etiologically related to his military service. Sleep Apnea The July 2014 VA examiner opined that the Veteran’s sleep apnea is “not incurred in the military as this provider was UNABLE to find [a diagnosis] or [treatment] for sleep apnea during or after the military per . . . [a review of the medical records].” However, the Board notes that the Veteran’s post-service medical records document a diagnosis of obstructive sleep apnea. Moreover, the Veteran submitted a June 2009 statement from his wife (received by VA in February 2010) indicating that she was with him when he was stationed in Germany in 1989 and that he “went to Desert Storm.” She also indicated that when the Veteran returned from Saudi Arabia, she noticed him snoring louder and for brief moments she would not hear him and then he would gasp for breath but not wake up. Although the Veteran’s service treatment records do not reflect any complaints, treatment, or a diagnosis regarding obstructive sleep apnea, the lay statement from the Veteran’s wife (who is competent to describe the sleep habits of her husband that she witnessed after he returned from Saudi Arabia) suggests that the Veteran may have developed sleep apnea sometime during his military service between 1989 when he was stationed in Germany and when he separated from military service in November 1995, possibly as a result of his participation in the Operation Desert Storm in Saudi Arabia. The RO should schedule the Veteran for a VA examination to ascertain whether his sleep apnea is etiologically related to his military service. For the purposes of providing a medical opinion on this matter, the examiner should consider the lay statement from the Veteran’s wife as factual. These matters are REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his claimed left knee disability, left foot disability, right foot disability, residuals of a left 4th toe fracture, asthma, and sleep apnea. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability found. After reviewing the evidence of record, to include the Veteran’s lay statements and his service treatment records, the examiner must opine as to whether the Veteran has a current left knee disability that is “at least as likely as not” related to his military service. The examiner must provide adequate rationale for all medical conclusions reached. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot and left 4th toe disabilities (or residual disabilities) found on evaluation. After reviewing the evidence of record, to include the Veteran’s lay statements and his service treatment records, the examiner must opine as to the following: (a) Whether the Veteran has a current left or right foot disabilities (other than bilateral pes planus) that is “at least as likely as not” related to his military service. (b) Whether the Veteran has a current left 4th toe disability (or residual disability) that is “at least as likely as not” related to his military service. Additionally, the Board notes that the July 2014 VA examiner diagnosed the Veteran as having bilateral pes planus prior to entering the Air Force. Therefore, the examiner who conducts the new evaluation should opine as to the following: (c) Whether the Veteran’s previously diagnosed bilateral pes planus clearly and unmistakably preexisted his military service and whether it was aggravated by service or was otherwise attributable to service. The examiner must provide adequate rationale for all medical conclusions reached. 4. Schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran has asthma; and if so, whether that asthma is related to his military service. After reviewing the evidence of record, to include the Veteran’s lay statements and his service treatment records, the examiner must opine as to whether the Veteran currently has a diagnosis of asthma; and if so, whether that asthma is “at least as likely as not” related to his military service. The examiner must provide adequate rationale for all medical conclusions reached. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his previously diagnosed obstructive sleep apnea. After reviewing the evidence of record, to include the Veteran’s lay statements and his service treatment records, the examiner must opine as to whether the Veteran’s previously diagnosed obstructive sleep apnea is “at least as likely as not” related to his military service. Although the Veteran’s service treatment records do not reflect any complaints, treatment, or a diagnosis regarding obstructive sleep apnea, the lay statement from the Veteran’s wife (who is competent to describe the sleep habits of her husband that she witnessed after he returned from Saudi Arabia) suggests that the Veteran may have developed sleep apnea sometime during his military service between 1989 when he was stationed in Germany and when he separated from military service in November 1995, possibly as a result of his participation in the Operation Desert Storm in Saudi Arabia. The RO should schedule the Veteran for a VA examination to ascertain whether his sleep apnea is etiologically related to his military service. For the purposes of providing a medical opinion on this matter, the examiner should consider the lay statement from the Veteran’s wife as factual. The examiner must provide adequate rationale for all medical conclusions reached. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel