Citation Nr: 18149203 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-35 099 DATE: November 9, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claims of entitlement to service connection for a right ankle disorder and sleep apnea is granted. Service connection for a right ankle disorder is granted. Service connection for a bilateral foot disorder is granted. REMANDED Entitlement to an initial compensable rating for a left knee disorder based upon instability prior to May 25, 2016, and in excess of 30 percent from May 25, 2016 to April 10, 2018, and in excess of 30 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent prior to April 11, 2018, for a left knee disorder based upon limitation of motion, and in excess of 10 percent as of June 1, 2018, is remanded. Entitlement to a rating in excess of 10 percent for a left ankle disability prior to December 9, 2016, and in excess of 10 percent from May 1, 2017 to June 5, 2018, and in excess of 10 percent as of September 1, 2018, is remanded. Entitlement to service connection for a back disorder is remanded, to include as secondary to and/or aggravated by a service-connected disability. Entitlement to service connection for sleep apnea, to include as secondary to and/or aggravated by a service-connected disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to and/or aggravated by a service-connected disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an April 2001 rating decision, the claim of entitlement to service connection for a right ankle disorder was denied because it was not caused by, related to, and/or aggravated by service. 2. The evidence added to the record since the April 2001 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a right ankle disorder. 3. In an August 2007 rating decision, the claim of entitlement to service connection for sleep apnea was denied because it was not caused by, related to, and/or aggravated by service. 4. The evidence added to the record since the August 2007 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for sleep apnea. 5. It is at least as likely as not that the Veteran’s preexisting bilateral foot disability was aggravated by active military service. 6. It is at least as likely as not that the Veteran’s right ankle disorder had its onset during service and/or is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The April 2001 rating decision that denied the Veteran’s claim for entitlement to service connection for a right ankle disorder loss is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the April 2001 rating decision is new and material, the requirements to reopen the claim for a right ankle disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. The August 2007 rating decision that denied the Veteran’s claim for entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. As the evidence received subsequent to the August 2007 rating decision is new and material, the requirements to reopen the claim for sleep apnea have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 5. The criteria for service connection for a bilateral foot disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306. 6. The criteria for service connection for a right ankle disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to December 1994. As an initial matter, the Board observes that the Veteran’s substantive appeal was not timely as to the issues of an increased rating for a left ankle disability and TDIU, as well as service connection for a back disorder, sleep apnea (to include the application to reopen a previous final denial), a bilateral foot disorder, and a right ankle disorder (to include the application to reopen a previous final denial). Nevertheless, as the Regional Office (RO) issued a supplemental statement of the case on these issues after the substantive appeal was received and certified these issues, the Board finds that the Veteran was lead to believe these issues were on appeal, and therefore these issues are still on appeal. The Board notes that the Veteran has been assigned a 100 percent disability rating for his left knee disorder from April 11, 2018, to May 31, 2018. Moreover, he was awarded a 100 percent disability rating for his service connected left ankle disability from December 9, 2016 to April 30, 2016, and from June 6, 2018 to August 31, 2018. Therefore, as reflected herein, this is a full grant of the benefits sought on appeal and these periods are no longer on appeal for the respective disabilities. The Board acknowledges that the Veteran filed a claim of entitlement to service connection for a psychiatric disorder. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected herein, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the RO received new medical treatment records that were not previously considered in its last statement of the case. However, as this is a full grant of the issues that are actually being decided in this appeal, there is no prejudice to the Veteran for the Board to consider these records in the first instance. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right ankle disorder 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for sleep apnea In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In this case the Veteran is claiming entitlement to service connection for a right ankle disorder and sleep apnea. The Veteran’s right ankle and sleep apnea claims were previously denied by the RO in April 2001 and August 2007, respectively, on the basis that his disorders were not related to or aggravated by service. He did not appeal these decisions, nor did he submit any new and material evidence within a year of receiving the decisions. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claims. After a review of the evidence submitted since the respective April 2001 and August 2007 rating decisions became final, the Board determines that the claims should be reopened. The evidence now includes new medical evidence, including new VA examinations, medical treatment records, private opinions, and statements from the Veteran’s fellow servicemen, which raises the possibility that his right ankle disorder and sleep apnea are related to his active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claims, it is also “material,” as it relates to an unestablished fact necessary to support the claims. Namely, it shows that there may be a nexus between these disorders and the Veteran’s active duty service. Therefore, the claims should be reopened on this basis. Service Connection 3. Entitlement to service connection for a right ankle disorder 4. Entitlement to service connection for a bilateral foot disorder The Veteran asserts that his preexisting pes planus was aggravated by active service. Moreover, he also contents that his right ankle disorder was related to a basketball injury during service. 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. After a review of the evidence, the Board concludes that the Veteran’s current bilateral foot and right ankle disorders had their onset during service and/or is otherwise etiologically related to, including aggravated by, 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), 3.304, 3.306, 3.307, 3.309. As an initial matter, the Board notes that in cases of preexisting disorders and aggravation, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the disease or injury existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). If the disorder is noted upon entry into service, the Veteran has the burden of establishing aggravation by showing that the preexisting disorder has increased in severity as a result of active duty service. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). On the other hand, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If such an increase in severity is shown, it is presumed to have been aggravated absent clear and unmistakable evidence that the increase in disability is due to the natural progression of the disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Here, the evidence, including the Veteran’s own statements, indicate that he had bilateral pes planus prior to active duty. Therefore, there is clear and unmistakable evidence that the Veteran had a preexisting bilateral foot disorder prior to active service and the presumption of soundness does not attach. See Wagner, 370 F.3d at 1096. However, while the Veteran’s bilateral foot disorder preexisted service, the evidence of record indicates that his disorder was aggravated by active service. Specifically, the service treatment records reflect that the Veteran’s pes planus was “mild” and “asymptomatic” upon entry into service. Further, the service treatment records, in conjunction with the Veteran’s credible statements indicate that he had numerous injuries to his feet during service with symptoms characterized by pain, swelling, and some limitation of motion. Additionally, the objective medical evidence, including the May 2013 private opinion, reflects that his bilateral foot disorder has increased in severity since active service. As such, the Veteran’s condition was clearly aggravated during service. Next, there is no clear and convincing evidence that the Veteran’s condition was due to the natural progression of the disease. In arriving at this conclusion, the Board acknowledges that the negative evidence includes a March 2014 VA examiner’s report which states the Veteran’s pes planus was not aggravated beyond its natural progression due to service because there was no evidence of treatment during service. However, as mentioned above, the Veteran sought treatment during active duty service on a number of occasions and had symptoms of a foot disorder during service. As such, the Board concludes that this opinion does not amount to clear and convincing evidence that the worsening of the disorder was merely due to the natural progression of the disorder. Therefore, the Board concludes that the weight of the evidence supports that the Veteran’s preexisting bilateral foot disorder increased in severity as a result of active duty, or at the very least, the evidence is in equipoise, and service connection should be granted. With respect to a right ankle disorder, the Board observes that the Veteran sustained a right ankle injury, diagnosed as a sprain, while playing basketball during active service. Of note, while the initial treatment records state “no fracture,” the x-ray report indicates that the imaging results were “suboptimal” and recommended a repeat evaluation as there “is a question of a possible fracture.” Next, the post-service medical evidence, including the Veteran’s April 2016 private opinion, indicate that his current right ankle disorder was related to his in-service injury. Moreover, the Board takes notice of the fact that the Veteran is service-connected for a left ankle disorder that was also caused by a sprain while playing basketball. Of note, in that case, the examiner stated that “it is well established in the orthopedic literature” that a sprain of the ankle will make the Veteran more prone to further injury. The Board observes that the negative medical evidence includes the opinions from the March 2014 VA examiner, which indicates the Veteran’s right ankle disorder was not related to service. However, the examiner failed to discuss or address the x-ray report which states that the Veteran may have a fracture. Additionally, the examiner did not discuss or address whether or not the Veteran’s right ankle disorder was aggravated by his service-connected bilateral knee and left ankle disorders. As such, these opinions are less probative. As a result, the Board finds that the evidence is in relative equipoise to support service connection. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a left knee disorder based upon instability prior to May 25, 2016, and in excess of 30 percent from May 25, 2016 to April 10, 2018, and in excess of 30 percent thereafter, is remanded. 2. Entitlement to a rating in excess of 10 percent prior to April 11, 2018, for a left knee disorder based upon limitation of motion, and in excess of 10 percent as of June 1, 2018, is remanded. 3. Entitlement to a rating in excess of 10 percent for a left ankle disability prior to December 9, 2016, and in excess of 10 percent from May 1, 2017 to June 5, 2018, and in excess of 10 percent as of September 1, 2018, is remanded. As an initial matter, the Veteran was afforded a VA examination in October 2017 to assess the nature and severity of his service-connected left ankle knee disability; however, this examination was not considered by the RO in its most recent August 2016 supplemental statement of the case (SSOC). Moreover, with respect to these herein issues, numerous relevant and material medical treatment records have been obtained since August 2016 and have not been considered by the RO. Therefore, as the Veteran did not waive initial RO consideration of this evidence, a remand is required in order for the RO to consider the evidence and for the issuance of an appropriate SSOC. See 38 C.F.R. § 20.1304(c). Additionally, the Board observes that the Veteran had left knee surgery in April 2018. Therefore, as the medical evidence indicates the Veteran’s service connected knee disorder has increased in severity, the Veteran should be afforded a new examination in order to accurately assess the current level of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Cf. VAOPGCPREC 11-95 (April 7, 1995). 4. Entitlement to service connection for sleep apnea is remanded. The Board observes that in a June 2007 VA examination, while the examiner determined that the Veteran’s sleep apnea was not related to his service-connected heart disorder, he did not offer any opinions as to whether or not if it was aggravated by his service-connected heart disability, and/or incurred in, or directly caused by service. Further, the Board notes that the credible statements from the Veteran and his fellow servicemen reflect that he may have had symptoms of sleep apnea since service. As such, the VA examiner’s opinions are inadequate and a new opinion is necessary to determine if the Veteran’s sleep apnea is related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 5. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to and/or aggravated by a service-connected disability, is remanded. The Board observes that the medical treatment records, including the VA treatment records from May 2012, reflect that the Veteran has a current diagnosis of a psychiatric disorder that may have had its onset during service, and/or may otherwise be related to service. Moreover, the evidence also includes the credible statements from the Veteran which indicate that his psychiatric symptoms may be related to his pain from his service-connected disabilities. As a result, a VA examination is warranted based upon the evidence of record. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to service connection for a back disorder, to include as secondary to and/or aggravated by a service-connected disability, is remanded. The Board notes that in a January 2015 private examination, the Veteran’s treating physician indicates that the Veteran’s back disorder may have been aggravated by his service-connected left knee disability. However, while the May 2016 VA examiner opined that his back disorder was not caused by his service-connected left knee disability, he failed to discuss or address if his back disorder was aggravated by his knee disability. Therefore, a new opinion is necessary to determine if the Veteran’s back disorder is related to service, to include as aggravated by a service-connected disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 7. Entitlement to TDIU is remanded. As for the Veteran’s TDIU claim, the Board is unable to adjudicate this claim until the above development is completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Dallas, Texas, since October 2018, as well from any other VA facility which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit those records. 2. Schedule the Veteran for a VA examination to determine the current severity of his left knee and left ankle disabilities. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups. The examiner must estimate any additional loss of motion due to pain, flare-ups, or on weightbearing to the best of his or her ability. Additionally, schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of his acquired psychiatric disorder, sleep apnea, and back disorders, to include as secondary to and/or aggravated by a service-connected disability. The claims file and new records must be reviewed and such review should be noted in the opinion. The examiner should identify all current psychiatric disorders found on examination, including PTSD and depressive disorder. For PTSD, the examiner must use the diagnostic criteria specified in the DSM-V. If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. For each diagnosed psychiatric disorder, sleep apnea, and back disorder, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed disorder is etiologically related to the Veteran’s period of service, to include as secondary to and/or aggravated (permanently worsened beyond the natural progress of the disorder) by a service-connected disability. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel