Citation Nr: 18157964 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-40 775A DATE: December 14, 2018 ORDER Service connection for lumbar spondylosis is granted. REMANDED The claim for service connection for sleep apnea is remanded. The claim for service connection for a psychiatric disorder, including major depressive disorder, is remanded. The claim for a rating higher than 10 percent for residuals of right ankle cellulitis is remanded. The claim for a rating higher than 10 percent for residuals of left ankle cellulitis is remanded. FINDING OF FACT The Veteran had low back pain during active service, his lumbar arthritis was diagnosed on X-ray within a year of service separation, and he has had continuing symptoms since that time. CONCLUSION OF LAW The criteria for service connection for lumbar spondylosis are satisfied. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to September 1983, from February 2003 to January 2004, from July 2004 to May 2005, and from September 2006 to May 2008, with additional service in the Puerto Rico Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The service connection claim for a low back disability was originally denied in an October 2009 rating decision. The Veteran did not appeal that decision, and it became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Since then, additional service treatment records have been obtained. Accordingly, the Board will reconsider the claim under 38 C.F.R. § 3.156(c) (2017). The claims for service connection for sleep apnea and major depressive disorder were originally denied in a December 2014 rating decision. About two months later, the Veteran filed new informal claims for service connection for these disabilities. See February 2015 VA Form 21-4138, Statement in Support of Claim. The June 2015 rating decision confirmed the previous denials. The Veteran then submitted a Notice of Disagreement (NOD) in July 2015. As the Veteran’s July 2015 NOD was submitted within one year of the December 2014 rating decision, and thus is timely with respect to that decision (38 C.F.R. § 20.302 (2017)), the Board will treat it as applying to that earlier decision, even though it was apparently filed in response to the June 2015 rating decision. To do otherwise in this situation, that is, to characterize the December 2014 rating decision as final regarding the claims for sleep apnea and major depressive disorder, would be to over focus on a technicality to the point of absurdity, and would contravene the pro-claimant nature of VA’s claims adjudication system, especially when the Veteran has been proceeding pro se. The Veteran also perfected an appeal regarding service connection for a cholesterol condition. Prior to certification of the appeal and transfer of the record to the Board, the Veteran withdrew that appeal. See July 2018 VA Form 21-4138; see also 38 C.F.R. § 20.204 (2017). Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show the following: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for arthritis if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Low Back Disability The balance of the evidence supports service connection for the Veteran’s diagnosed lumbar spondylosis. The VA treatment records show that shortly after he separated from active duty, in January 2004, he reported numbness in his right leg since returning from Kuwait. A low back X-ray study was ordered, which revealed minimal degenerative lumbar spondylosis. In May 2009, about a year after the Veteran separated from another period of active service, he submitted a claim for a low back disability. See May 2009 VA Form 21-526. He indicated in the application form that the disability began in February 2008, which was during that period of service. See id. A June 2009 VA examination report reflects that the Veteran reported a gradual onset of low back pain while deployed to Egypt. He stated that on several occasions he was given pain killers. He denied trauma, but attributed the back pain to long hours of standing on guard with full gear. He stated that the back pain had progressively worsened, and he treated it with a heating pad, bengay, and Tylenol. On examination, he had limited range of motion of the spine, with objective evidence of pain on motion. An X-ray study again showed mild lumbar spondylosis. A June 2015 VA examination report reflects that the Veteran reported low back pain that began several years earlier. A September 2017 VA X-ray study again showed mild degenerative changes of the lumbar spine. Given the Veteran’s competent and credible report of low back symptoms during and since service, as well as the x-ray evidence of arthritis (i.e. spondylosis) within a year of his second period of active service, the Board finds that regardless of whether the evidence is sufficient to establish service connection on a direct basis, it is at least in equipoise on the issue of whether arthritis was noted within a year of separation, with back pain manifesting in service and continuing symptoms thereafter. Thus, resolving reasonable doubt in favor of the claim, service connection is granted under the provisions of 38 C.F.R. § 3.303(b). See 38 U.S.C. 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Additional efforts must be made to obtain any outstanding service treatment records for the Veteran’s periods of service subsequent to his initial active service in the 1980’s. The record shows that a request was submitted to the Records Management Center (RMC) in May 2017, but no response from the RMC is documented or referred to in the file. Requests were also submitted to the National Personnel Records Center (NPRC) in 2015 for records for the first period of service (i.e. 1980 to 1983), and for National Guard records for the Veteran’s subsequent periods of service. The file shows that the NPRC responded to the first request, but there is no documentation or reference to a response to the second request. Moreover, it is not clear that the request for “National Guard Record” was sufficient to request service treatment records for the active service periods. On remand, additional requests must be made to the RMC and NPRC for these records, using the appropriate request codes for the Personnel Information Exchange System (PIES), and any negative responses documented for the file. Sleep Apnea A new VA medical opinion is warranted. The Veteran claims service connection for obstructive sleep apnea on a direct basis, stating that his symptoms first began during service, or as secondary to his service-connected rhinitis. A December 2014 VA medical opinion concludes that the Veteran’s sleep apnea was less likely than not related to service because it was not diagnosed during service. The Veteran has submitted statements dated in May 2017 and June 2017 from individuals who served with him which attest to his snoring loudly and sounding at times like he was not breathing or suffocating during sleep. It was based on the Veteran’s report of recurrent snoring and daytime sleepiness that a sleep study was ordered which supported the diagnosis of sleep apnea, as reflected in VA treatment records dated in February 2013 and October 2013. A new opinion should be obtained that considers this history in determining whether the Veteran’s sleep apnea had its onset in service. A September 2018 VA medical opinion concludes that the Veteran’s sleep apnea was less likely than not caused by or a result of his service-connected rhinitis because there is no pathophysiological relationship. This opinion does not address the issue of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Board also notes that a May 2011 VA treatment record reflects a finding that the Veteran’s rhinitis was uncontrolled, and that a sleep apnea study should be considered if it did not improve. This record indicates that there may be a relationship between the Veteran’s rhinitis and his sleep apnea.   Psychiatric disorder, Including Major Depressive Disorder This claim is remanded for any outstanding service treatment records, as discussed above, and to provide the Veteran another opportunity to submit or authorize VA to obtain any outstanding relevant private treatment records. Bilateral Ankle Disabilities A VA examination was performed most recently in September 2018. The examination report reflects that the Veteran endorsed flare-ups. The examiner stated that an estimate of additional loss of motion during flare ups or with repeated use over time could not be provided without resort to mere speculation, as the Veteran was not being examined during a flare-up or after repeated use over time. This explanation is not sufficient to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, it does not explain why an estimate cannot be provided based on the available information, including the Veteran’s statements. See id. The report also does not specify the frequency, severity, and duration of the Veteran’s flare-ups. Accordingly, a new examination must be obtained. The matters are REMANDED for the following action: 1. Submit requests to the RMC and NPRC—using the appropriate request codes for National Guard service— for the Veteran’s service treatment records from his active service periods from February 2003 to January 2004, July 2004 to May 2005, and September 2006 to May 2008. Any negative responses from the RMC and NPRC must be documented for the file. The Veteran must also be notified if his service treatment records for these periods of service are not obtained. 2. Request the Veteran to identify and authorize the release of any outstanding private psychiatric treatment records, including records from Dr. D. Demorizi’s office dating from 2012 to 2014 (see December 2014 VA Mental Disorders examination report). Appropriate efforts must be made to obtain these records if sufficient authorization has been furnished. The Veteran should also be invited to submit these records himself. 3. Add to the file any outstanding VA treatment records for the Veteran dated since August 2018. 4. Obtain a new VA medical opinion regarding service connection for sleep apnea, as specified below. Direct service connection: The examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran’s sleep apnea had its onset in service. The examiner must consider the statements dated in 2017 from individuals who served with the Veteran, which attest to hearing him snore loudly and sound like he was having difficulty breathing while asleep. Secondary service connection: The examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran’s sleep apnea was caused or aggravated by his service-connected rhinitis. The examiner must separately address the issue of aggravation. “Aggravation” means an increase in severity of the disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. 5. Arrange for a new VA examination of the Veteran’s ankles to assess the current level of severity of his service-connected bilateral ankle disabilities. In addition to all other pertinent findings, if the Veteran endorses flare-ups, then the examiner must elicit as much information as possible from him regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. Further, if the examination is not performed during a flare-up, then the examiner must provide an estimate of additional loss of range of motion during a flare-up or with repeated use over time. If the examiner is unable to provide such an estimate, the examiner must provide a specific explanation as to why the available information, including the Veteran’s statements, is not sufficient for that purpose. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel