Citation Nr: 18157969 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-08 260 DATE: December 13, 2018 ORDER New and material evidence having been received, the claim for service connection for sleep apnea is reopened. Entitlement to a compensable evaluation for hemorrhoids is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for a lumbosacral strain and degenerative arthritis of the spine with intervertebral disc syndrome is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a June 2013 rating decision, the RO denied service connection for sleep apnea. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 2. The evidence received since the June 2013 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for sleep apnea. 3. The Veteran’s hemorrhoids are not large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, and he does not have persistent bleeding with secondary anemia or fissures. CONCLUSIONS OF LAW 1. The June 2013 rating decision denying service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the June 2013 rating decision is new and material as to the claim for service connection for sleep apnea, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for a compensable evaluation for hemorrhoids have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7336 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1986 to September 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2017); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead 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. Id. at 118. The RO previously considered and denied a claim for service connection for sleep apnea in a June 2013 rating decision. In that decision, the RO noted that the Veteran’s service treatment records were negative for any complaints, treatment, or diagnosis of sleep apnea and found that the disorder did not occur in and was not caused by service. The Veteran was notified of that decision and of his appellate rights, but he did not timely appeal the determination. Instead, he filed a notice of disagreement (NOD) beyond the one-year time limit. See June 2014 NOD; July 2015 notification letter. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the June 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The Board observes that service records were associated with the claims file in July 2014, but they are not relevant to the Veteran’s claim for service connection for sleep apnea. Therefore, the provisions of 38 C.F.R. § 3.156(c) do not apply. At the time of the June 2013 rating decision, the evidence of record included the Veteran’s service treatment records and post-service medical records. The evidence received since the June 2013 rating decision includes a June 2014 statement from the Veteran alleging that he suffered from sleep apnea symptoms during his naval service and continuing since that time. The Veteran had previously reported an onset of the disorder in 1995 in his June 2012 VA Form21-526; however, he provided additional details regarding his in-service symptoms and treatment in the June 2014 statement. He also asserted that his sleep apnea developed as a result of his late-night drills in service. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim, and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for sleep apnea is reopened. However, as will be explained below, further development is necessary before the merits of the Veteran’s claim can be addressed. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. While a veteran’s entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is currently assigned a noncompensable evaluation for hemorrhoids pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7336. Under that diagnostic code, a noncompensable evaluation is assigned for mild or moderate external or internal hemorrhoids. A 10 percent evaluation is contemplated for external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A 20 percent evaluation is warranted for external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his hemorrhoids. The evidence does not show that the Veteran’s hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. Nor has he been shown to have persistent bleeding with secondary anemia or fissures. A September 2015 VA examiner did indicate that there were large external hemorrhoids; however, they were not thrombotic or irreducible, with excessive redundant tissue. Rather, he described them as mild or moderate. Although there was intermittent bleeding with pain reported, the examiner did not find any persistent bleeding, anemia, or fissures. The examiner also stated that there is no functional impact from the Veteran’s hemorrhoids. There are no treatment records showing otherwise, and the Veteran has not identified any outstanding medical records pertinent to this issue. Moreover, the Veteran has only reported that he has external hemorrhoids with mild bleeding. See December 2016 VA Form 9. He has not reported any other symptomatology during the appeal period that would meet the criteria for a compensable evaluation. After review of the evidence of record, the Board finds that an increased evaluation for hemorrhoids is not warranted. Therefore, the Board finds that the weight of the evidence is against an increased evaluation for the Veteran’s service-connected hemorrhoids. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (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 The Veteran was afforded a VA examination in September 2015 in connection with his claim for an increased evaluation for his service-connected lumbar spine disability. However, in light of a recent decision issued by the United States Court of Appeals for Veterans Claims (Court), a remand is required. Specifically, the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 25 Vet. App. 158 (2016). As the September 2015 VA examination report does not satisfy the requirements under Correia, an additional examination is needed. The Board also notes that the Veteran has not been afforded a VA examination in connection with his current claim for service connection for sleep apnea. As previously noted, the Veteran has reported that he had symptoms in service, such as snoring and sleeping and breathing problems, and he has been clinically diagnosed with sleep apnea. See June 2004 VA treatment record (diagnosing severe obstructive sleep apnea following a sleep study); June 2014 lay statement (alleging daytime fatigue, heavy snoring and witnessed apneas in service). Therefore, the Board finds that a VA examination and medical opinion are needed to determine the etiology of the disorder. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers not already of record who have provided treatment for sleep apnea and his service-connected lumbosacral spine disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran’s sleep apnea manifested in service or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology and late-night drills performed therein. See July 2014 statement. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbosacral strain and degenerative arthritis of the spine with intervertebral disc syndrome. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the lumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also comment on whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify all neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examination conducted during the appeal period in September 2015. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel