Citation Nr: 18149644 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-63 503 DATE: November 13, 2018 ORDER New and material evidence has been received to reopen the issue of service connection for a bilateral foot disability. New and material evidence has been received to reopen the issue of service connection for hypertension. New and material evidence has been received to reopen the issue of service connection for sleep apnea. New and material evidence has been received to reopen the issue of service connection for cervical spine disability. Service connection for bilateral foot disability is denied. Service connection for sleep apnea is denied. A rating of 30 percent, for a headache disability is granted. REMANDED The issue of entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for cervical spine disability is remanded. The issue of entitlement to a higher rating for left knee disability is remanded. The issue of entitlement to a higher rating for right knee disability is remanded. FINDINGS OF FACT 1. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral foot disability. 2. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for hypertension. 3. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. 4. Evidence added to the record since the previous final denial raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disability. 5. Bilateral foot disability is not related to service. 6. Sleep apnea is not related to service. 7. Headaches are manifested by prostrating attacks occurring on average once a month over the last several months. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral foot disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for cervical spine disability. 3 8 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 5. The criteria for service connection for bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 6. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 7. The criteria for a disability rating of 30 percent for headaches have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record verifies that the Veteran had active service from March 1986 to April 1995. The record indicates that he also had active service from October 1982 to March 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing 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. 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 substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s original claims for service connection for bilateral foot disability, cervical spine disability, and hypertension were denied in a March 1997 rating decision. The RO denied the claim regarding cervical spine disability because the Veteran did not have a diagnosed disability. The RO denied the claims regarding bilateral foot disability and hypertension because the evidence indicated that these disorders were not incurred in or due to service. The RO denied the original claim of service connection for sleep apnea in an October 2007 rating decision because the Veteran’s sleep apnea was not incurred in or due to his time in service. The Veteran did not appeal the March 1997 and October 2007 rating decisions. As such, the decisions became final. In September 2014, the Veteran submitted the present claims of service connection for bilateral foot disability, cervical spine disability, hypertension, and sleep apnea. In the January 2015 rating decision on appeal, the RO denied reopening the claims, finding that new and material evidence had been submitted. Since the previous final denial, new evidence has been submitted that the Veteran has a diagnosed cervical spine disability. This evidence is not redundant of evidence previously of record. Therefore, this claim will be reopened. Relevant evidence submitted since the previous final denial for the claims of service connection for a bilateral foot disability, hypertension, and sleep apnea, include treatment records, examination reports, and lay statements from the Veteran. This new evidence is material. Therefore, the claims will be reopened. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Sleep apnea The Veteran contends that his sleep apnea is due to service. The evidence indicates that the Veteran has been diagnosed with sleep apnea since 2005. The evidence also indicates that he experienced sleep difficulty during service. However, the preponderance of the evidence indicates that post-service sleep apnea is unrelated to service. Service treatment records (STRs) do not indicate sleep problems during service. Nevertheless, lay evidence indicates that the Veteran experienced sleep difficulty during service. In June 2007, the Veteran, his father, and his spouse submitted statements. The Veteran said that, during his time in service, he did not understand why he was a loud snorer, cranky, or why he had headaches four to five times a week. The Veteran reported he would often wake up in the middle of the night choking and having to vomit. The Veteran said he never had these problems prior to joining the service. The Veteran’s father is a service-connected Veteran with sleep apnea. He reported that, before the Veteran joined the Marines, the Veteran did not show any symptoms of sleep apnea. In the mid-1980s, the Veteran’s father reported the Veteran was not sleeping well and developed daily headaches. The Veteran’s father believed the Veteran’s condition was caused by his time in service. The Veteran’s spouse said the Veteran snored when they were married in 1988 but it had worsened. The Veteran would stop breathing ten or more times per night. The spouse would shake the Veteran awake and he would vomit. These statements clearly indicate a problem with sleep during service. The only medical opinion of record addressing the issue counters the claim of medical nexus, however. The Veteran was afforded an examination for his sleep apnea in November 2016. The examiner indicated that the Veteran’s sleep apnea was likely not incurred in service. The examiner explained that a sleep study confirming the diagnosis was performed in 2005, which was 10 years after separation from service. The examiner noted that the Veteran denied trouble sleeping while in service, noted that a sleeping problem was not indicated upon examination at separation from service, and noted that the statement from the Veteran’s spouse had been considered but that the statement was unclear. Foot disability The Veteran also contends that he has a bilateral foot disability that is due to service. This claim must be denied because the record lacks medical evidence demonstrating that the Veteran has a foot disability. The Board has reviewed VA treatment records and VA examination reports (to include those addressing lower extremity disability) and none documents the diagnosis of a foot disability. As such, this claim must be denied as well. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a service-connected disability adversely affects a claimant’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Headache disability has been rated under Diagnostic Code (DC) 8100 of 38 C.F.R. § 4.124a. Under this DC, a 10 percent disability rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent disability rating is warranted for headaches with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Headache disability has been service connected as 10 percent disabling since November 1996. On September 17, 2014, the Veteran filed an increased rating claim for this disorder. He contends his headaches are worse than the current rating indicates. The Veteran underwent VA examination for headaches in December 2014. The examiner noted a diagnosis of migraines. The examiner noted the Veteran experienced headache pain that included pulsating or throbbing pain, pain on both sides of the head, nausea, vomiting, changes in vision, and sensitivity to light. The examiner noted the Veteran’s headaches lasted one to two days. The examiner reported the Veteran had prostrating attacks once in two months that were not frequent. However, in a statement from the Veteran received on June 18, 2015, the Veteran reported that his headaches had worsened and that he had more frequent headaches than was indicated in the December 2014 VA report. Inasmuch as the Veteran is competent to report such symptoms, and is credible, an increase in rating is warranted based on his lay assertions. See Jandreau, supra. The Board finds a higher 30 percent rating warranted effective the date of his statement. The maximum rating of 50 percent under DC 8100 is not warranted, however. The evidence does not show that the headaches lead to severe economic inadaptability. See 38 C.F.R. § 4.124a. Regarding the claims above, the Board acknowledges and has considered the Veteran’s, father’s, and spouse’s statements that his conditions bother him, lead to fatigue, discomfort, and that the Veteran and his family believe the Veteran’s disabilities are due to his time in service. The Board also recognizes the Veteran continues to seek medical treatment for many of these conditions. However, while the Veteran and his family are competent to report the symptoms of his disabilities, they are not competent to opine on matters requiring medical knowledge, such as determining the nature, etiology, and severity of his medical conditions. See Jandreau, supra. REASONS FOR REMAND A remand is warranted for additional medical inquiry into the increased rating claims for bilateral knee disability, and into the service connection claims for hypertension and neck disability. The most recent VA examination of the knees was conducted in December 2014. The Veteran contends that his disability has worsened since then. A new examination should be provided. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran has not undergone VA compensation examination into the service connection claims for neck disability and hypertension. The record documents current cervical spine disability (see February 2015 medical record) and STRs note multiple complaints of cervical spine pain (see July 1985, February 1988 medical records.) The record also documents that the Veteran has been diagnosed with essential hypertension, and STRs indicate several elevated blood pressure readings during service (see May 1983, January 1985, October 1988, February 1992 STRs.) The RO should provide VA compensation examinations into these claims. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The RO should obtain any outstanding medical records and associate them with the claims file. 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination for his bilateral knee disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. (a) The Veteran’s knees should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (b) The examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, s/he should state whether all procurable medical evidence has been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should explain in detail any opinion provided. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of cervical spine disability. After reviewing the claims file, the examiner should answer the following questions. (a) Is it at least as likely as not (a 50 percent or greater probability) that cervical spine disability had its onset during service, or is otherwise due to service? In answering (a), review and discuss the STRs indicating complaints of neck pain during service. (b) Is it at least as likely as not that cervical spine disability is proximately due to or aggravated by service-connected disability? The examiner should explain in detail any opinion provided. 4. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his hypertension. After reviewing the claims file, the examiner should answer the following questions (a) Is it at least as likely as not (a 50 percent or greater probability) that hypertension had its onset during service, or is otherwise due to service? In answering (a), review and discuss the STRs indicating elevated blood pressure during service. (b) Is it at least as likely as not that hypertension is proximately due to or aggravated by service-connected disability? The examiner should explain in detail any opinion provided. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel