Citation Nr: 18154724 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-39 748 DATE: November 30, 2018 ORDER New and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for a low back disability, manifested by pain. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected sleep apnea, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The September 2008 rating decision continued the previous denial of entitlement to service connection for a low back disability based on the lack of new and material evidence. The Veteran submitted a notice of disagreement (NOD) with this determination in December 2008, and a statement of the case (SOC) was issued in November 2009. The Veteran failed to perfect his appeal with respect to this issue and thus the July 2008 rating decision became final. 2. The evidence associated with the file since the September 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 3. The preponderance of the evidence supports a finding that the Veteran’s acquired psychiatric disorder is secondary to his service-connected sleep apnea. 4. The Veteran is service-connected for: sleep apnea at 50 percent; headaches at 50 percent; residuals, left wrist injury at 10 percent; and residuals, right wrist injury at 0 percent. The Veteran’s combined disability rating is 80 percent, meeting the schedular criteria for a TDIU. 5. The Veteran was last gainfully employed working in customer service at a telecommunication company in 2007. He resigned from this employment for medical reasons. 6. Resolving all doubt in his favor, the Veteran’s service-connected disabilities, particularly his sleep apnea and headaches with associated symptoms, preclude his substantially gainful employment. CONCLUSIONS OF LAW 1. The September 2008 rating decision that declined to reopen the previously denied claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2018). 2. The evidence received since the September 2008 rating decision is new and material as to the claim for service connection for a back disorder and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for service connection for an acquired psychiatric disorder, to include as secondary to service-connected sleep apnea, are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 4. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 through August 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although evidence was received since the June 2013 rating decision, the Veteran’s representative waived the right to have this evidence reviewed by the RO. See April 2018 argument in support of appeal. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). The Veteran originally filed a claim of entitlement to service connection for posttraumatic stress disorder, but his representative argues that the claim should be construed broadly as an acquired psychiatric disorder, to include as secondary to service-connected sleep apnea. See April 2018 argument in support of appeal. A claim for service connection for a disability encompasses all relevant symptoms, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). This is because a claimant generally is not competent to diagnose his or her specific condition where such a diagnosis requires medical expertise; they are only competent to identify and explain the symptoms that they observe and experience. Clemons, 23 Vet. App. at 4-5. Accordingly, the issue is broadened to a claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected sleep-apnea. 1. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. In a September 2008 rating decision, the RO declined to reopen the previously denied claim of entitlement to service connection for low back pain because, although there was treatment in service for back pain, no permanent residual or chronic disability subject to service connection was shown by service treatment records (STRs) or demonstrated by evidence following service. Though the Veteran submitted an NOD in December 2008 and an SOC was issued in November 2009, the Veteran failed to perfect his appeal. As such, the September 2008 rating decision became final. Evidence of record at the time of the September 2008 rating decision included: STRs; a Statement in Support of Claim, received July 24, 2008; VA notification of VA's Duty to Assist sent on August 5,2008; and VA Medical Center (VAMC) Indianapolis treatment records dated from April 2008 to July 2008. The evidence from the VAMC submitted in connection with the current claim did not constitute new and material evidence because it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The evidence showed continued weight gain and chronic low back pain. The Veteran demonstrated full range of motion of the low back pain. There was sensitivity with palpation over the paraspinals in the lumbar region but X-ray findings were normal. There was no evidence to show that the current treatment was linked to the Veteran’s complaints in service. The copies of STRs that were submitted had already been considered in the initial rating decision. Evidence received after the September 2008 rating decision includes VA treatment records through May 2017. A January 2013 VA treatment record shows the Veteran reported his back pain stemmed from an injury in bootcamp and had progressively gotten worse over the years. At the conclusion of the Veteran’s treatment, the physician documented the Veteran’s chronic lower back pain for the past 10 years, and concluded that the Veteran stopped engaging in physical activities due to pain approximately 6 years ago, which corresponded to around the time he was discharged from service. See January 2013 VA treatment record. The Board finds that new and material evidence has been presented. The evidence, including the January 2013 treatment record, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim – that the Veteran’s current back disorder relates to an in-service injury. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of reopening. Justus, 3 Vet. App. at 513. Moreover, considering the new evidence in conjunction with evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, the Veteran’s claim is reopened. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected sleep apnea. The Veteran contends that his currently diagnosed psychiatric disorder is either the result of his time in active duty service, or secondary to a service-connected disability. The Board agrees. As noted in the introduction section of this decision, the Board has recharacterized the issue on appeal to reflect the Veteran’s claim as one for an acquired psychiatric condition, rather than only posttraumatic stress disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310 (a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. When aggravation of a veteran’s nonservice-connected condition is proximately due to, or the result of, a service-connected condition, the veteran shall be compensated for the degree of disability - but only that degree - over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In December 2012, the Veteran was diagnosed with depressive disorder, not otherwise specified (NOS). See December 2012 VA examination and report. Second, the Board finds that the Veteran is currently service-connected for sleep apnea. See June 2013 rating decision. Third, the Board finds that the Veteran’s depression is caused or aggravated by his service-connected sleep apnea. A December 2012 VA examiner opined that the Veteran’s depression was more than likely secondary to his sleep apnea (as sleep architecture disturbance and unremitting pain syndromes with long-term narcotic use are notable triggers/maintainers of depressive mood disorders). VA treatment records show that the Veteran’s sleep apnea, sleep disturbances, and chronic back pain engendered the Veteran’s feelings of inadequacy. See February 2013 VA treatment record. Therefore, the record supports the December 2012 VA examiner’s opinion that the Veteran’s depression was secondary to his service-connected sleep apnea. Affording the Veteran the full benefit of the doubt, the Board finds that all three elements of Allen have been satisfied. See Allen, supra. Accordingly, service connection is granted. 3. Entitlement to a TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for the following disabilities: sleep apnea at 50 percent; headaches at 50 percent; residuals, left wrist injury at 10 percent; and residuals, right wrist injury at 0 percent. For the time period on appeal, the Veteran’s combined disability rating is 80 percent. Thus, the percentage requirements for TDIU are met because there are two or more disabilities, with at least one disability ratable at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board further notes that service connection is granted herein for an acquired psychiatric disorder, and although the RO has not yet assigned the appropriate disability rating, the Veteran still meets the TDIU criteria as set forth above. Resolving all doubt in favor of the Veteran, the record reflects that the Veteran is unable to work due to his service-connected disabilities. The Veteran last worked in customer service at a telecommunication company in 2007. See May 2015 application for TDIU. The Veteran’s employer at that time noted he resigned for medical reasons. See March 2009 response to request for employment information. The Veteran has not worked since that time. The Veteran submitted a report from Ms. J.M.S., a vocational rehabilitation consultant. See April 2018 vocational report. Ms. J.M.S. documented the Veteran’s service-connected disabilities; reviewed the functional and occupational limitations assessed by VA examiners from 2006 through 2013; and provided a summary of the Veteran’s employment and educational history. Ms. J.M.S. concluded that the Veteran’s service-connected disabilities rendered him unable to work. Specifically, the Veteran’s almost daily headaches would cause him to miss work, go home early, or call off work; the Veteran’s residual wrist disabilities would limit his ability to lift or carry heavy objects, as well as maintain grasp of items; and the Veteran’s sleep apnea would cause daytime hypersomnolence and fatigue, which would severely affect his ability to remain on task, concentrate, or maintain production during a work shift. Ms. J.M.S. opined that the Veteran’s service-connected disabilities resulted in total disability based on individual unemployability. The Board notes that the Veteran worked as a mechanic during active service and for a period of time thereafter. See December 2005 DD form 214; May 2015 application for TDIU. Given the limitations caused by the Veteran’s residual wrist disabilities, he would be unable to perform the grasping required for this and other physically demanding occupations. The Veteran also worked in customer service at a telecommunication company. Given the limitations caused by the Veteran’s headaches and sleep apnea, he would be unable to remain on task, concentrate, or maintain production during a work shift. The Veteran is currently service-connected for sleep apnea at 50 percent, which contemplates persistent day-time hypersomnolence and use of a breathing assistance device. Similarly, the Veteran is currently service-connected for headaches at 50 percent, which contemplates prostrating headaches at least once a month. The Veteran has reported fatigue and daytime hypersomnolence; as well as debilitating headaches about 3 to 4 times a week, which are sharp, stabbing, and throbbing; occasionally causing nausea and blurred vision. See February 2013 VA examination and report; May 2017 VA examination and report. These symptoms result in an inability to secure and follow a substantially gainful occupation even in a relatively static work environment. In conclusion, the evidence shows that the Veteran has not worked since 2007 as a result of the service-connected disabilities and entitlement to TDIU is granted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to service connection for a low back disorder. Remand is required for a new VA opinion regarding the Veteran’s back disorder. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA examination in March 2006, at which time the examiner noted back spasms and guarding, but commented that it was probably affected by his significant weight gain during service and thereafter. The examiner failed to provide an opinion or consider the Veteran’s statement that his back pain started just after graduating from bootcamp. Similarly, while the Veteran was afforded a VA examination in January 2009, the examiner did not provide an opinion and failed to consider radiographs showing minimal retrolisthesis. Although a VA physician concluded that the Veteran’s lack of physical activity was due to his back disorder, both of which corresponded to around the time he was discharged from service, no rationale for this conclusion was provided. Therefore, remand for a new VA opinion is required. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding records of VA treatment. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the Veteran’s back disorder from an appropriate VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability had onset in, or is otherwise related to, active service, to include as based on falling during boot camp, or weight gain during service. (b.) The examiner must specifically address the following: 1) service treatment records for complaints of back pain and weight gain; 2) lay statements of the Veteran’s wife; 3) the Veteran’s lay statements regarding onset of his symptoms; 4) the March 2006 VA examination; 5) the January 2009 VA examination; and 4) the January 2013 VA record of concluding the Veteran’s lack of physical activity was due to his back disorder, both of which corresponded to around the time he was discharged from service. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel