Citation Nr: 18153426 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-53 840 DATE: November 27, 2018 ORDER The application to reopen the previously denied claim for entitlement to service connection for sleep apnea is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for an acquired psychiatric disability, to include an adjustment disorder unspecified and pain disorder, is denied. Entitlement to an initial rating of 20 percent, but no higher, for service-connected degenerative joint disease (DJD), right ankle is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating of 20 percent, but no higher, for service-connected DJD, left ankle is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. In a May 2007 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for sleep apnea. The Veteran neither appealed this decision via a timely substantive appeal nor submitted new and material evidence within the one-year appeal period. 2. Evidence since the May 2007 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran’s obstructive sleep apnea is related to active military service. 4. The preponderance of the evidence is against finding that an acquired psychiatric disability, to include an adjustment disorder unspecified and pain disorder, began during active service, or is otherwise related to an in-service injury, event, or disease. 5. Symptoms of the Veteran’s right ankle disability have more nearly approximated marked limitation of motion, but not ankylosis. 6. Symptoms of the Veteran’s left ankle disability have more nearly approximated marked limitation of motion, but not ankylosis. CONCLUSIONS OF LAW 1. The May 2007 rating decision that denied the claim for entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 2. The evidence received since the May 2007 rating decision is new and material and sufficient to reopen the claim of service connection for a sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) 5. The criteria for an evaluation of 20 percent, but no higher, for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 5271 (2018). 6. The criteria for an evaluation of 20 percent, but no higher, for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, DC 5271 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from September 1998 to March 2002. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which continued a 10 percent evaluation for right and left ankle DJD, denied service connection for sleep apnea, and denied service connection for adjustment disorder with pain disorder and psychological features. The Veteran timely filed a notice of disagreement (NOD) and substantive appeal, via a VA Form 9. In a December 2011 rating decision, the RO reopened the claim for service connection for sleep apnea and continued to deny the claim. However, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New and Material 1. The application to reopen the previously denied claim for entitlement to service connection for sleep apnea Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for entitlement to service connection for sleep apnea was previously denied in a May 2007 rating decision. The pertinent evidence then of record consisted of service treatment records (STRs) and VA treatment records prior to March 2007. Service connection was denied on the basis that there was no medical evidence showing a current disability. Although notified of the May 2007 denial in a May 2007 notification letter, the Veteran did not appeal that decision via a substantive timely appeal, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the May 2007 denial is final as to the evidence then of record, and is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence added to the claims file since the May 2007 rating decision includes a diagnosis of sleep apnea, a private and VA medical opinion, statements of the Veteran, and VA treatment records. This evidence provides bases for reopening the claim for service connection for sleep apnea. Specifically, the Veteran’s statements are new in that they were not before the agency of decision makers at the time of the May 2007 final denial of the claim for service connection, and are not duplicative or cumulative of evidence previously of record. Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of evidence establishing sleep apnea and treatment thereof. Thus, the new medical records and Veteran’s statements relate to unestablished facts necessary to substantiate the claim for service connection for sleep apnea and also raise a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 110. The criteria for reopening the claim for service connection for sleep apnea have therefore been met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 2. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea is related to his military service. STRs reflect that in September 2001 the Veteran was seen for hypersomnia, difficulty waking up in the morning, and being late for work. The Veteran reported occurrence of four events of not waking up over the prior eight months. The Veteran denied having heroic snoring per girlfriend and denied having apneic episode. An assessment of hypersomnia was noted. Post-service, in a January 2007 VA treatment note, the Veteran reported that he was evaluated for a sleep disorder prior to discharge from the Air Force but never had a sleep study performed. He was subsequently referred for a sleep study. A June 2007 sleep study from Palm Bay Community Hospital reflects a diagnosis of obstructive sleep apnea. In a 2008 statement from the Veteran’s coworker, he reported that he observed the Veteran falling asleep and a lack of energy. During an August 2011 VA examination, the Veteran, again, reported that he was diagnosed with a sleeping disorder while in service; however, he did not have sleep studies while in service. The examiner confirmed the diagnosis of sleep apnea. The examiner opined that the Veteran’s sleep apnea was not the same as or the result of the one episode of hypersomnia and having difficulty getting up in time for work while on active duty. As rationale for the opinion, she reported that the Veteran’s claims file contains only one episode of a sleep condition while in the service. She reported that it was an episode of hypersomnia with difficulty getting up for work. She stated that there was no mention of significant snoring or catching of breath while sleeping. She reported that there were no other mentions of sleep problems in the service. She concluded that his current condition was not related to the single episode in service. In a February 2015 private opinion, the doctor stated that sleep apnea was improperly denied on the basis that he was diagnosed with sleep disorder while on active duty and not sleep apnea. He reported that the wording in the diagnostic line may have been sleep disorder but it was in a generic sense which is verified but that the follow up diagnostic test ordered (but never availed to the Veteran) was a sleep lab study. He stated that the term sleep disorder is a term generally applied to insomnia where the follow up is via medications. He reported that a sleep study is not an appropriate test for sleep disorder in the true sense of the word. Additionally, he reported, the chief complaint was for snoring and cessation of respirations during sleep which is clearly without question the symptomatology of sleep apnea. He stated that the symptomatology in itself excludes sleep disorder. He concluded that the fact is that the Veteran was diagnosed with sleep apnea during his active duty military service and his sleep apnea was subsequently proven in a sleep lab study ordered by the VA medical facility. VA treatment records reflect continued treatment for the Veteran’s sleep apnea. Upon review of the evidence of record, the Board finds that service connection for obstructive sleep apnea is warranted. The August 2011 VA examination report reflects a lack of relationship between the Veteran’s diagnosed sleep apnea and his in-service complaints of hypersomnia. The Board must weigh this opinion against the private February 2015 private opinion. The February 2015 positive medical opinion was based on the Veteran’s statements, STRs, and sleep testing results—an entire review of the Veteran’s medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). Thus, the Board finds this opinion to be probative as well. Additionally, the Veteran reported that he was diagnosed with a sleep disorder and was not given a sleep study in service. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). While the Veteran is not competent to opine on the etiology of his sleep apnea as this relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship and is of the type that the courts have found to be beyond the competence of lay witnesses, STRs reflect his complaints and reports of a sleep problem in service where he was subsequently diagnosed with hypersomnia. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Given the adequate positive medical nexus opinion and competent, credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the Veteran’s obstructive sleep apnea is related to his in-service report of hypersomnia. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for an acquired psychiatric disability STRs do not reflect any complaint, treatment, or diagnosis of an acquired psychiatric disability. Notably, the February 2002 separation report of medical examination reflects a normal psychiatric clinical evaluation and on the separation report of medical history, the Veteran did not indicate he had any psychiatric symptoms. Post-service, a March 2015 private Psychological Evaluation reflects diagnoses of adjustment disorder unspecified and pain disorder associated with both psychological factors and a general medical condition. She opined that results of the assessment were consistent with the presence of adjustment-related difficulties associated with military service. She stated that the Veteran reported the onset of restricted range of affect, emotional numbing, anhedonia, troubles with sleep onset, and fatigue that began during his military service secondary to multiple stressors that were apparent. She reported that his symptoms are, as likely as not, service-connected. An October 2016 VA examination report reflects that the examiner did not find a current mental health diagnosis. During the examination, the Veteran denied mental health difficulties or counseling prior to service. The Veteran denied mental health treatment since he has been out of service. He reported that he saw one person because his representative though he might have a dissociative disorder but he stated, “I think I’m fine.” He reported he filed his claim because the lady he saw noted that he did not have a lot of emotional connections to things. He also denied social and occupational impairment. As such, the examiner found that no diagnosis was warranted at that time. She reported that although a psychologist diagnosed adjustment disorder at the time of the examination in March 2015, there was no evidence of that or any psychological disorder at the time of the present examination. She stated that it was worth noting that adjustment disorders typically remit when the cause of the disorder is gone. She reported that he may have had an adjustment disorder at that time, but today, he denied any mental health symptoms or impairment that would warrant a diagnosis. There is no other evidence or statements from the Veteran indicating a psychiatric disability. Upon review of the evidence of record, the Board finds that service connection for an acquired psychiatric disability, to include adjustment disorder unspecified and pain disorder, is not warranted. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that the medical examinations have conflicting opinions regarding whether the Veteran has a current psychiatric disability. The evidence reflects that the Veteran had a diagnosis of adjustment disorder unspecified and pain disorder during the period of appeal, as found by the examiner in March 2015. However, according to the October 2016 VA examination report, the Veteran had no such diagnosis. The Veteran filed his claim for service connection in 2015 and received a diagnosis in 2015; thus, during the pendency of the appeal. Therefore, there is evidence of a current disability in 2015 even if such condition later resolved. In this case, however, the Board finds the October 2016 opinion more probative as to whether the Veteran has a current disability. As noted, a psychiatric disability was not shown in service nor was such competently and credibly indicated for many years thereafter. Moreover, the October 2016 examiner explains that the Veteran, himself, denies having ever having any psychiatric disorder. As supporting evidence, the examiner essentially notes that the Veteran received a diagnosis of adjustment disorder and filed a claim for service connection because the March 2015 evaluator thought that he had a service-connected psychiatric disability. Given the fact that the Veteran denies having any such psychiatric disorder; and, given that the October 2016 examiner agreed following a review of the entire record, the Board finds that the preponderance of the evidence is against a finding of a current psychiatric disorder. Moreover, even if the Board concedes that the March 2015 private evaluator’s diagnosis is valid, the other evidence of record, including the Veteran’s own self-reported history, weighs against a finding of service connection. The March 2015 adjustment disorder diagnosis first comes over 10 years after separation from service. Moreover, as noted above, neither in the statements submitted in connection with the appeal nor during any treatment at the VA did the Veteran indicate that he had a psychiatric disability or symptomatology in service. Significantly, the Veteran essentially denies having a psychiatric problem, as noted in the 2016 VA examination; and, he admitted that his representative reported that he had a problem yet he felt like he was fine. Thus, the weight of the evidence reflects that even if the Board concedes that there is current psychiatric diagnosis in 2015, it is not related to service and did not have its onset therein. For the foregoing reasons, entitlement to service connection for a psychiatric disability, to include adjustment disorder unspecified and pain disorder, is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 4. Entitlement to initial ratings in excess of 10 percent each for service-connected right and left ankle DJD The Veteran contends that his bilateral ankle disability warrants increased disability ratings. His right and left ankle DJD is currently rated as 10 percent disabling for each ankle under the criteria for limitation of ankle motion found at 38 C.F.R. § 4.71a, DC 5271. Limitation of motion of the ankle is assigned a 10 percent rating for “moderate” limitation and a 20 percent rating for “marked” limitation. 38 C.F.R. § 4.71a, DC 5271. A higher disability rating for musculoskeletal ankle disability is not available unless ankylosis is present. 38 C.F.R. § 4.71a, DC 5270. The examination reports of record, however, have specifically noted that the Veteran has not had ankylosis of the right or left ankle. The Veteran underwent a VA examination for his ankles in January 2008, March 2009, June 2010, and April 2015. Range of motion testing of the right ankle revealed dorsiflexion was, at worst, to 15 degrees and plantar flexion was, at worst, to 30 degrees. Range of motion testing of the left ankle revealed dorsiflexion was, at worst, to 20 degrees and plantar flexion was, at worst, to 20 degrees. Additionally, during the January 2008, March 2009, and June 2010 VA examinations, the Veteran reported flare-ups described mostly as moderate and weekly. The January 2008 VA examiner noted a mild to moderate effect on the Veteran’s daily activities due to his right ankle. The March 2009 VA examiner noted a mild to severe effect on the Veteran’s daily activities due to his left ankle. The June 2010 VA examiner noted a mild effect on the Veteran’s daily activities due to his bilateral ankle disability. Additionally, the examiner noted that both ankles had instability, pain, weakness, stiffness, incoordination, and gave way. The April 2015 VA examiner found that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time with the fact that caused this functional loss described as pain. Likewise, the April 2015 VA examiner noted instability, bilaterally. Based on the foregoing, the Board finds that the Veteran’s bilateral ankle disability most closely approximates marked limitation of motion. While the Veteran’s range of motion testing results have varied, it has been at times, substantially less than normal. The Veteran has consistently reported functional impairment and pain. Additionally, the Veteran has reported moderate, weekly flare-ups and the effects of his disability has varied from mild to severe. While the Veteran’s bilateral ankle disability has shown improvement as indicated by the April 2015 VA examination report, the Board finds that the overall disability picture of the Veteran’s bilateral ankle disability has more nearly approximated marked limitation of motion for the entire period on appeal, warranting 20 percent ratings for each ankle. A 20 percent rating is the maximum evaluation under DC 5271. Because the Veteran’s right and left ankle disabilities have been assigned the maximum ratings based on limitation of motion, the DeLuca criteria are not applicable. See Johnston, 10 Vet. App. at 85; see also 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07. The Veteran also has arthritis bilaterally; however, a separate rating for arthritis is not warranted for either ankle. Arthritis is rated based on limitation of motion with pain, the same criteria under which the Veteran’s ankles are current rated. Accordingly, the assignment of separate ratings for arthritis in addition to the ratings currently assigned would amount to compensating the Veteran twice for the same manifestations under different diagnoses, in violation of the rule against pyramiding. As there was no evidence of ankylosis or os calcis, astragalus, or astragalectomy, warranting a higher rating under DCs 5270, 5272, 5273, or 5274, no higher or separate rating is warranted. For the foregoing reasons, the Board finds that an initial rating of 20 percent each, but no higher, for right and left ankle disabilities is warranted. As the preponderance of the evidence is against a rating higher than 20 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laroche, Natalie