Citation Nr: 18151816 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-54 763 DATE: November 20, 2018 ORDER New and material evidence has been received, and the claim for service connection for right wrist pain is reopened. New and material evidence has been received, and the claim for service connection for lumbosacral strain is reopened. New and material evidence has been received, and the claim for service connection for colds, upper respiratory infections, claimed also as a sinus disorder, is reopened. New and material evidence has been received, and the claim for service connection for bunions with hallux valgus deformity, partially compensated flat feet, also claimed as bilateral foot disorder is reopened. REMANDED Entitlement to service connection for right wrist pain is remanded. Entitlement to service connection for lumbosacral strain is remanded. Entitlement to service connection for colds, upper respiratory infections, claimed also as a sinus disorder, is remanded. Entitlement to service connection for bunions with hallux valgus deformity, partially compensated flat feet, also claimed as bilateral foot disorder is remanded. Entitlement to service connection for right ankle pain is remanded. Entitlement to service connection for left ankle pain is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. An April 2002 rating decision denied the Veteran’s claims of entitlement to service connection for right wrist pain, lumbosacral strain, and colds, upper respiratory infections, essentially finding that a causal relationship had not been established between each of the claimed disorders and the Veteran’s service; the Veteran did not appeal the denial of those claims or submit new and material evidence within a year of the decision, and the April 2002 decision became final. 2. An August 2009 rating decision reopened and denied the Veteran’s claim of entitlement to service connection for bunions with hallux valgus deformity, partially compensated flat feet, because the evidence shows the claimed disorder was not incurred in or aggravated by military service; the Veteran did not appeal that denial or submit new and material evidence within a year of the decision, and the August 2009 decision became final. 3. Evidence received since the aforementioned final decisions is new and pertains to unestablished facts necessary to substantiate the claims. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for right wrist pain is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received, and the claim of service connection for lumbosacral strain is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. New and material evidence has been received, and the claim of service connection for colds, upper respiratory infections, claimed also as a sinus disorder, is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. New and material evidence has been received, and the claim of service connection for bunions with hallux valgus deformity, partially compensated flat feet, also claimed as bilateral foot disorder, is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1979 to February 1999. Pertinent evidence received since the April 2002 and August 2009 final unappealed rating decisions, regarding the claims for service connection for right wrist pain, lumbosacral strain, and colds, upper respiratory infections, and bunions with hallux valgus deformity, partially compensated flat feet, respectively, includes a July 2016 statement by the Veteran wherein she stated that the claimed disorders are “in fact” service connected. She stated that she developed the disorders while she was in the service; and that she did not have the disorders prior to entering the service. Specifically, with regarding to right wrist pain, the Veteran asserts this was possibly due to heavy lifting and use of the computer in service. She also stated her low back pain was from working in “supply” and lifting heavy boxes and other items. She also attributed her low back pain to excessive walking in service and her involvement in a motor vehicle accident in service. She stated she had upper respiratory problem in service and had to discontinue medication for sinusitis due to severe gastritis. She reported that disabilities of her feet are due to years of being in military boots, ruck marching and running. In addition, she relates that the disorders are worse; she has chronic pain daily, which affects her activities. The Board will presume the credibility of this evidence in determining whether it is new and material; viewing this evidence in the light most favorable to the Veteran, and considering the “low threshold” standard for reopening in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds the evidence to be new and material. This follows because it is not cumulative or redundant of the evidence previously of record, and it tends to relate to unestablished facts necessary to substantiate the claims; and raises a reasonable possibility of substantiating the underlying claims. Accordingly, the claims of entitlement to service connection for right wrist pain, lumbosacral strain, colds, upper respiratory infections and bunions with hallux valgus deformity are reopened. De novo consideration of these claims is addressed in the REMAND that follows. REASONS FOR REMAND In terms of the six service connection claims being remanded, the Board notes that the Veteran has not been afforded VA examinations addressing any of these claims, aside from a May 1999 VA examination addressing the spine that contained no nexus opinion. As indicated above, the Veteran has presented specific contentions concerning all of the reopened claims. As to the remaining claims, and regarding sleep apnea, there was respiratory treatment in service. A service treatment record (date illegible) shows that the Veteran reported having sinus and nasal congestion; an upper respiratory infection with acute bronchitis was diagnosed. The Board also notes that June 1980 service treatment records show the Veteran complaining of bunions aching; the diagnoses were hallux abducto valgus with bunion deformity, mild and partially compensated pes planus. The Board cannot exclude the possibility that these in-service findings contributed to the claimed left and right ankle disorders. Based on the evidence presented the Board finds that the low threshold of McClendon v. Nicholson, 20 Vet. App. 79 (2006) is met for each of the claims, and VA examinations are warranted. The matter is REMANDED for the following action: 1. Obtain any additional private treatment records, not already associated with the claims file, for treatment received for the Veteran’s right wrist, low back, sinus, feet, ankles and sleep apnea. All releases necessary for VA to secure the records should be provided by the Veteran. 2. Obtain all outstanding VA treatment records for treatment received for the Veteran’s right wrist, low back, sinus, feet, ankles and sleep apnea since September 2017. 3. Schedule the Veteran for a VA orthopedic examination to determine the nature, onset, and likely etiology of the claimed right wrist, low back, bilateral foot, and left and right ankle disorders. The relevant documents in the record should be made available to the examiner, including a copy of this Remand, and the examiner shall indicate in the report that the claims file was reviewed. All indicated studies should be performed. The examiner should address the following: a) Identify, with specificity, all current diagnoses pertinent to the Veteran’s claimed right wrist, low back, bilateral foot, and bilateral ankle disorders. b) For each diagnosed disability, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the right wrist, low back, bilateral foot, and bilateral ankle disorders are related to an in-service incident or injury, caused by, or otherwise etiologically related, to the Veteran’s active military service. A complete rationale should be provided for any opinion expressed. 4. Schedule the Veteran for a VA respiratory examination to determine the nature, onset, and likely etiology of any upper respiratory infection/sinus disorder and obstructive sleep apnea. The relevant documents in the record should be made available to the examiner, including a copy of this Remand, and the examiner shall indicate in the report that the claims file was reviewed. All indicated studies should be performed. The examiner should address the following: a) Identify, with specificity, all current diagnoses pertinent to the Veteran’s claimed upper respiratory infection/sinus disorder and obstructive sleep apnea. b) For each diagnosed disability, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any upper respiratory infection/sinus disorder or obstructive sleep apnea is related to an in-service incident or injury, caused by, or otherwise etiologically related to the Veteran’s active military service. A complete rationale should be provided for any opinion expressed. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel