Citation Nr: 1808781 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-31 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim for service connection for sleep apnea, and if so, whether service connection is warranted. 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain with enthesopathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1986 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The reopened claim of entitlement to service connection for sleep apnea and the claim for an increased rating for lumbosacral strain with enthesopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 2003 rating decision denied service connection for sleep apnea; the Veteran did not file a notice of disagreement, new and material evidence was not received within one year of notice of the decision, and no relevant official service department records were subsequently associated with the record. 2. Evidence added to the record since the May 2003 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for sleep apnea. CONCLUSION OF LAW 1. The May 2003 rating decision that denied service connection for sleep apnea is final. 38 U.S.C.A. § 7105(c) (West 2002) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for sleep apnea is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the issues is deferred pending additional development consistent with the VCAA. The RO denied the Veteran's claim for service connection for sleep apnea in a May 2003 rating decision. The Veteran was advised of the decision and his appellate rights later that month. However, no further communication regarding his claim of entitlement to service connection for sleep apnea was received until April 2010, when VA received his application to reopen such claim. Further, no new and material evidence was received within one year of the notification of the decision, and relevant service department records have not since been received. Therefore, the May 2003 decision is final. See 38 U.S.C.A. § 7105(c) (West 2002) [38 U.S.C. § 7105(c) (2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2002) [(2017)]; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, 38 U.S.C. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the May 2003 rating decision, the AOJ considered the Veteran's service treatment and personnel records and post-service VA treatment records, and denied service connection for sleep apnea. In this regard, the AOJ noted that his service treatment records did not show any findings, treatment, complaints, or diagnosis referable to sleep apnea, and post-service treatment records reflect persistent disorder of initiating or maintaining sleep. However, the medical evidence showed that such began many years after service and there was no competent medical evidence linking a current diagnosis to the Veteran's military service. Consequently, the AOJ denied service connection for sleep apnea as such was not found to have been incurred in or caused by service. The evidence received since the issuance of the May 2003 rating decision includes additional post-service treatment records, an October 2012 VA examination, and numerous lay statements. In this regard, a December 2001 sleep study revealed a diagnosis of sleep apnea. Furthermore, an April 2011 statement from the Veteran's former spouse describes his snoring problem and waking up in the night gasping for air. Additionally, at his February 2017 Board hearing, the Veteran described various in-service exposures and symptoms referable to his sleep apnea. Such evidence is presumed credible solely for the purpose of determining whether new and material evidence has been submitted. See id. Consequently, as the newly received evidence addresses the nature of the in-service symptoms and events the Veteran experienced, and discusses a nexus, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the May 2003 decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for sleep apnea. Accordingly, the Board finds that new and material evidence has been received and the Veteran's claim for service connection is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened; the appeal is granted to this extent only. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened and remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Regarding the Veteran's claim for an increased rating for his lumbosacral strain with enthesopathy, the Board finds a remand is necessary in order to afford him a contemporaneous VA examination. In this regard, the October 2010 and October 2014 examination reports do not contain all the findings as required by the United States Court of Appeals for Veterans Claims (Court). Specifically, in Correia v. McDonald, 28 Vet. App. 158, 170 (2016), the Court found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, the examinations of record only include range of motion (ROM) testing on active motion, and do not include ROM testing on passive motion and in weight-bearing and nonweight-bearing. Therefore, such testing should be accomplished in connection with the examination conducted on remand. Additionally, the examiner will be requested to offer a retrospective medical opinion as to the findings included in the prior examinations conducted during the appeal period. Further, the Court recently addressed 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In this case, the Veteran did not endorse flare-ups during the October 2010 or October 2014 examinations. The October 2010 examiner indicated such by noting the Veteran has no history of spine condition flare-ups. However the Veteran's historical exams contradict this, as he endorsed flare-ups in both of the two most recent VA examinations from before the appeal period. Specifically, at a September 2005 examination, he endorsed daily flare-ups, and at a June 2008 examination, he endorsed weekly flare-ups. As such a remand is necessary in order to determine the nature of the Veteran's current flare-ups and the resulting functional impairment. At his Board hearing, the Veteran endorsed radicular pain and burning sensations in his bilateral lower extremities. As such, the examiner should also address whether the Veteran's back disability results in any associated objective neurologic impairment, to include radiculopathy. Regarding the Veteran's claim for service connection for sleep apnea, the Board finds a remand is necessary in order to obtain an addendum to the October 2013 VA examination. In this regard, the examiner opined that he was unable to relate the Veteran's sleep apnea to a specific exposure event experienced during service without resorting to speculation because he did have any information regarding the Veteran's exposure to a specific substance which is known to cause the condition. Thereafter, in the Veteran's February 2017 hearing testimony, he stated that he first experienced his symptoms in 1990 while sleeping in a tent in Iraq. He stated they used a kerosene heater to warm the little tent, and he remembers waking up choking, and couldn't breathe. Additionally, he reported experiencing snoring during service and, in an April 2011 statement, his ex-spouse indicated that she witnessed the Veteran snoring and waking up gasping for air during his military service. It does not appear that the examiner considered whether the Veteran's sleep apnea, diagnosed six years after his separation from his military service, had its onset during service. Further, the examiner noted that the Veteran's service treatment records were silent for any mentions of sleep trouble, specifically noting that documents from September 1994 and November 1993 marked negative for sleep problems. However, the opinion did not note that the service treatments records contain a document from November 1993 in which the Veteran had marked that he had frequent trouble sleeping. It should be noted that this indication coincides with treatment for frequent headaches that caused the Veteran to wake up in order to use pain medication. Therefore, an addendum opinion that addresses such matters should be obtained. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and severity of his back disability and any associated neurological conditions. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's back disability. (B) The examiner should record the range of motion of the lumbar spine observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 why that is so. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's back disability conducted in October 2010 and October 2014. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his back at the time of the examination, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner is requested to indicate whether intervertebral disc syndrome related to the Veteran's service-connected back disability is present. If so, the examiner should the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an 'incapacitating episode' is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (G) The examiner is also requested to indicate whether the Veteran's back disability results in any associated objective neurologic impairment, to include radiculopathy of the bilateral legs and, if so, the nature and severity of such neurologic impairment. (H) The examiner should also comment upon the functional impairment resulting from the Veteran's back disability. A rationale for all opinions offered should be provided. 2. Forward the record to the examiner who conducted the October 2013 VA examination referable to sleep apnea. The record and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the October 2013 examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea, diagnosed in December 2001, had its onset in or is otherwise related to his military service. In offering such opinion, the examiner should specifically consider the Veteran's reports of snoring and waking up choking in service after sleeping in a small tent with a kerosene heater; his former wife's statements of his snoring and waking up gasping for air during service; and the November 1993 service treatment record wherein the Veteran reported that he had frequent trouble sleeping, which coincided with treatment for frequent headaches that caused him to wake up in order to use pain medication. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs