Citation Nr: 18159355 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-63 349 DATE: December 18, 2018 ORDER The appeal seeking to reopen a claim for entitlement to service connection for degenerative disc disease with mild stenosis of the cervical spine is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran’s claim seeking entitlement to service connection for degenerative disc disease with mild stenosis of the cervical spine was initially denied in a July 2008 rating decision that became final. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 2. The evidence added to the record since the July 2008 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for degenerative disc disease with mild stenosis of the cervical spine. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for degenerative disc disease with mild stenosis of the cervical spine. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1984 to August 1995. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for degenerative disc disease with mild stenosis of the cervical spine The Veteran seeks to reopen a claim of entitlement to service connection for degenerative disc disease with mild stenosis of the cervical spine. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The service connection claim was initially denied in a July 2008 rating decision because the evidence did not show that the Veteran’s claimed cervical spine condition incurred in or was caused by active duty service. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. The Veteran filed a petition in November 2014 to reopen her service connection claim, which was denied in an August 2015 rating decision because the evidence failed to show that her cervical spine condition occurred either during or as a result of active duty service. Evidence received since the July 2008 rating decision includes numerous VA and private treatment records. The medical records were not in her claims file at the time of the last final rating decision, and therefore, the treatment records are new. However, none of this recently submitted evidence establishes that the Veteran’s cervical spine condition can be related to her active duty military service. The newly submitted records do not address an unestablished fact, and therefore, are not material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has not been received to reopen the Veteran’s service connection claim for degenerative disc disease with mild stenosis of the cervical spine, and the appeal is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disability, is remanded. The Veteran testified at her Board hearing that she experienced problems with sleep and breathing while on active duty service. She also stated that she has been told by medical providers both that her sleep apnea was due to her service-connected asthma and that the condition related to active duty service. An April 2015 VA examination report reflects the Veteran has been diagnosed with obstructive sleep apnea. However, the examiner provided a conclusory opinion that did not address the Veteran’s lay statements reporting problems with sleep and breathing since active duty service. Remand is needed for an addendum opinion on this issue. 2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability, is remanded. The Veteran also testified at her Board hearing that she initially injured her left knee during active duty service, and she has had left knee problems since that time. In November 2015, she was afforded a VA examination where she was diagnosed with chondromalacia patella of the left knee. The examiner opined that it was less likely than not that the Veteran’s left knee condition was caused by her service-connected right ankle and foot disability. However, the examiner did not address the aggravation prong of this secondary service connection theory of entitlement, and did not comment on whether the Veteran’s left knee condition was related to active duty service. In a December 2016 addendum opinion, the VA examiner concluded it was less likely than not that the Veteran’s left knee condition was related to active service, based on medical treatment records that failed to show any documentation of ongoing complaints until 13 years after discharge from active duty. Remand is needed for more thorough VA opinions that address both the Veteran’s lay statements reporting continuous problems with her left knee since discharge from active duty service, and consider whether the Veteran’s left knee condition was aggravated by her service-connected right ankle and foot disability. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records regarding the Veteran dated from April 2016 to the present. 2. Then obtain an addendum opinion regarding the Veteran’s service connection claim for obstructive sleep apnea. The claims file, to include a copy of this Remand, must be made available to the examiner for review prior to the exam. If the opinion provider determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Based on the examination, if deemed necessary, and review of the record, the examiner is requested to provide an opinion addressing the following questions: (a.) Is it at least as likely as not (50 percent or higher probability) that the Veteran’s diagnosed obstructive sleep apnea had its onset in or is otherwise related to active duty service? (b.) Is it at least as likely as not (50 percent or higher probability) that the Veteran’s diagnosed obstructive sleep apnea was caused or aggravated (defined as any increase in disability) by her service-connected asthma? A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then obtain an addendum opinion regarding the Veteran’s service connection claim for a left knee disability. The claims file, to include a copy of this Remand, must be made available to the examiner for review prior to the exam. If the opinion provider determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Based on the examination, if deemed necessary, and review of the record, the examiner is requested to provide an opinion addressing the following questions: (a.) Is it at least as likely as not (50 percent or higher probability) that the Veteran’s diagnosed left knee chondromalacia patella had its onset in or is otherwise related to active duty service? (b.) Is it at least as likely as not (50 percent or higher probability) that the Veteran’s diagnosed left knee chondromalacia patella was caused or aggravated (defined as any increase in disability) by her service-connected residual right ankle fracture with tarsal tunnel syndrome, degenerative joint disease, hallux valgus, and cavovarus deformity with residual scars? A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel