Citation Nr: 18116156 Decision Date: 07/05/18 Archive Date: 07/05/18 DOCKET NO. 13-27 354 DATE: July 5, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. To that extent only, the appeal is granted. Entitlement to service connection for obstructive sleep apnea is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for residuals of a laceration of the right index finger is remanded. Entitlement to an initial disability rating higher than 0 percent for Bell's Palsy is remanded. FINDINGS OF FACT 1. An October 2009 RO rating decision denied service connection for a left knee disability, and an April 2010 RO rating decision denied service connection for a right knee disability. 2. The Veteran did not perfect an appeal of the issue of entitlement to service connection for a left knee disability in the October 2009 RO decision or the issue of entitlement to service connection for a right knee disability in the April 2010 RO decision. 3. The evidence received since the October 2009 and April 2010 rating decisions is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for left and right knee disabilities. 4. The preponderance of the evidence is against a finding that sleep apnea was not incurred in, is due to or the result of, or was permanently aggravated by service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence 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, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability Service connection for a left knee disability was denied in an October 2009 RO decision. The RO noted that although the service medical records showed treatment for bilateral mild patellofemoral syndrome and bilateral patellar tendonitis, a VA examination did not show a left knee disability. The RO denied service connection for a left knee disability as the evidence of record did not show a current left knee disability. Evidence associated with the claims file since the October 2009 RO decision includes additional lay statements, VA and federal treatment records, and the transcripts from the Veteran’s Board hearings. In particular, in a November 2013 letter, N.M., M.D., stated that the Veteran had patellofemoral compartment degenerative changes of both knees. That doctor stated that after reviewing the Veteran’s pertinent records, the doctor was positive that it was highly probable that the Veteran’s bilateral knee osteoarthritis was the direct result of service. That evidence provides evidence of a current diagnosis of a left knee disability and suggests a relationship to service. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the newly submitted treatment records give a current diagnosis of a left knee disability, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for a left knee disability is reopened. Although the new evidence is adequate for the limited purpose of reopening the claim, that does not necessarily make it sufficient to allow the grant of the benefits sought. That will be discussed in the remand below. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability Service connection for a right knee disability was denied in an April 2010 RO decision. The RO noted that although the service medical records showed treatment for bilateral mild patellofemoral syndrome and bilateral patellar tendonitis, post-service treatment records showed that the Veteran had a civilian work-related right knee injury in July 2008. A VA examiner had opined that although the Veteran had a current right knee disability, the current right knee condition was less likely than not related to the in-service knee condition. Evidence associated with the claims file since the October 2009 RO decision includes additional lay statements, VA and federal treatment records, and the transcripts from the Veteran’s Board hearings. In particular, in a November 2013 letter, N.M., M.D., stated that the Veteran had patellofemoral compartment degenerative changes of both knees. That doctor stated that after reviewing the Veteran’s pertinent records, the doctor was positive that it was highly probable that bilateral knee osteoarthritis was the direct result of service. That evidence provides evidence of a possible relationship between a current right knee disability and the Veteran’s service. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the newly submitted treatment records give a possible relationship between a current right knee disability and the Veteran’s service, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for a right knee disability is reopened. Although the new evidence is adequate for the limited purpose of reopening the claim, that does not necessarily make it sufficient to allow the grant of the benefits sought. That will be discussed below. Service Connection Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 3. Entitlement to service connection for obstructive sleep apnea At the outset, the Board notes that the Veteran’s service medical records are incomplete. Although the service medical records covering the period of the Veteran’s service from May 1983 through May 1998 are of record, the service treatment records covering the period from May 1978 through April 1983 are missing. In July 2009, the Personnel Information Exchange System reported that all available service treatment records had been provided. In April 2012, the Records Management Center confirmed that no further service medical records for the Veteran were located. In May 2012, the RO made a formal finding that the service medical records for the period from May 1973 through April 1983 were unavailable for review. The Veteran was informed of the missing records in correspondence dated in May 2012, and he was informed of alternative forms of evidence that he could submit. An additional request for service medical records was made to the National Personnel Records Center in October 2015 with negative results, and the Veteran was again informed in June 2016 correspondence of alternative forms of evidence that he could submit. The Board is aware that in cases such as this, where part of the Veteran’s service records are lost or destroyed, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully whether reasonable doubt exists to resolve in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992); O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Because those records, if they existed, remain absent from the file, the Board’s analysis has been undertaken with the heightened obligation in mind. The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in a decision all evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). A sleep study conducted in May 2010 resulted in a diagnosis of obstructive sleep apnea. Thus, the evidence shows that the Veteran has a current disability. The remaining question is whether the diagnosed sleep apnea is as likely as not related to the Veteran’s active duty. The available service medical records do not show any signs or symptoms of sleep apnea. R.L.M. stated in an undated letter that he had known the Veteran since November 2004, and the Veteran tended to fall asleep if he was sitting down for a very short period of time. In a December 2012 letter, the Veteran’s spouse stated that the Veteran had problems sleeping. He stopped sleeping a few times a night. In an October 2013 letter, the Veteran’s daughter commented that the Veteran had sleep apnea and took several medications to help him sleep. At the April 2018 Board hearing, the Veteran stated that he had sleep apnea for the prior 20 years. He remarked that working in the Navy really altered his sleep as he had very irregular sleep habits while he was on active duty. He stated that his spouse told him that he snored. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s and other lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board has carefully considered the Veteran’s and other lay statements that he had sleep difficulties while on active duty. However, the Veteran indicated on Dental Health Questionnaires completed in April 1995 and January 1998, and on Reports of Medical History completed in October 1995 and February 1998 that he did not have frequent trouble sleeping. As the Veteran’s present assertions contradict what the Veteran himself indicated on these Reports of Medical History, the Board finds his statements to not be credible. The Board finds the Veteran’s indications on his Reports of Medical History to be of greater probative weight than his present assertions, as the Veteran created the Reports of Medical History contemporaneously with his actual service. The Board notes that the Veteran has not been scheduled for or provided with a VA examination for the claim of entitlement to service connection for sleep apnea. The Board finds that a medical opinion is not necessary to decide that claim due to a lack of credible medical evidence of sleep apnea in service or for decades thereafter. In essence, there is no competent evidence of record that links the claimed disability to service. Therefore, a VA medical opinion is not warranted for the claim for service connection for sleep apnea. 38 C.F.R. § 3.159(c)(4) (2017). The evidence of record establishes that the Veteran has current sleep apnea. However, the record simply fails to establish that the Veteran’s sleep apnea is medically related to any incident of service. None of the medical records showing a diagnosis of sleep apnea indicates that the Veteran’s sleep apnea is at least as likely as not a result of service, and neither the Veteran nor his representative has presented or identified any such existing medical opinion. Without such a nexus, service connection cannot be granted. Hickson v. West, 12 Vet. App. 247 (1999). In sum, there is no credible evidence of a continuity of symptoms dating from the Veteran’s service through the present, and none of the medical treatment providers of record have given any indication that the Veteran’s sleep apnea is related to his service. Accordingly, the Board finds that the preponderance of the evidence is against that claim and the claim for service connection for sleep apnea must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. In a November 2013 letter, N.M., M.D., stated that the Veteran had patellofemoral compartment degenerative changes of both knees. That doctor stated that after reviewing the Veteran’s pertinent records, the doctor was positive that it was highly probable that the Veteran’s bilateral knee osteoarthritis was the direct result of service. However, Dr. M. made no mention of the treatment records which show that the Veteran had a civilian work-related right knee injury in July 2008. Dr. M. also did not discuss the May 2009 physical therapy record which contains the Veteran’s statement that his left knee condition only began about two weeks previously secondary to compensating for his right knee pain. Therefore, the opinion given by Dr. M. does not appear to be based on a full evidentiary record. Previously, in July 2015, the Board noted that other evidence of record was supportive of a link between the Veteran’s knee disabilities and service. That evidence included several lay statements and a copy of a service medical record. A VA examination was requested addressing the question of etiology of the current left knee disability as related to service. The Board specifically instructed the examiner to assume that the Veteran is a credible historian. The requested examination was held in May 2016. The examiner opined that due to the absence of documented symptoms, evaluation, diagnosis, or treatment during service, it was less likely that the Veteran’s current left knee condition was related to or onset during service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The May 2016 VA examiner based the opinion on the absence of documented symptoms during service. However, a service medical record dating from approximately 1996, when the Veteran was 37, the Veteran’s age is listed on the record though the date is not, noted complaints of ongoing bilateral knee impairment and an assessment of bilateral patellofemoral syndrome and bilateral patellar tendon laxity. As the Veteran had documented in-service left knee symptoms, remand is required for a corrective VA examination to obtain an etiology opinion based on all of the evidence of record. 2. Entitlement to service connection for a right knee disability is remanded. In a November 2013 letter, N.M., M.D., stated that the Veteran had patellofemoral compartment degenerative changes of both knees. The doctor stated that after reviewing the Veteran’s pertinent records, the doctor was positive that it was highly probable that the Veteran’s bilateral knee osteoarthritis was the direct result of service. However, Dr. M. made no mention of the treatment records which show that the Veteran had a civilian work-related right knee injury in July 2008. Therefore, the opinion given by Dr. M. does not appear to be based on a full evidentiary record. A service medical record dating from approximately 1996, when the Veteran was 37, the Veteran’s age is listed on the record though the date is not, noted complaints of ongoing bilateral knee impairment and an assessment of bilateral patellofemoral syndrome and bilateral patellar tendon laxity. As the Veteran has documented in-service right knee symptoms, and a current diagnosis of a right knee disability, remand is required for a VA examination to obtain an etiology opinion based on all of the evidence of record. 3. Entitlement to service connection for a left ankle disability is remanded. 4. Entitlement to service connection for a right ankle disability is remanded. Previously, in July 2015, the Board found that the Veteran had credibly testified to having considerable difficulty with his ankles, which he related to work aboard ships on flight decks in service, when he experienced numerous ankle sprains. The Veteran had also submitted statements by family members and co-workers to support his claim. A VA examination was requested addressing the question of etiology of the Veteran’s current left and right ankle disabilities as related to service. The Board specifically instructed the examiner to assume that the Veteran is a credible historian. The requested examination was held in May 2016, and an addendum was provided in June 2017. The examiner opined that as there was no documented history of ankle injury, symptoms, diagnosis, or treatment during military service, it was less likely that the Veteran’s current ankle conditions were related to or onset during his military service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is important to note that the Board may not rely on a medical opinion that rejects a Veteran’s lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board specifically instructed the examiner to assume that the Veteran is a credible historian. Again, the service medical records from some of the Veteran’s active duty are missing. Remand is required for a VA examination to obtain an etiology opinion that specifically considers and addresses the Veteran’s theory that relates current ankle symptoms to his work aboard ships on flight decks in service, when he experienced numerous ankle sprains. 5. Entitlement to service connection for hypertension is remanded. Previously, in July 2015, the Board found that the Veteran had credibly testified to having been treated with medication for hypertension off and on in service, with treatment beginning again around 1998, though he did not recall whether that was during service or after service. A VA examination was requested addressing the question of etiology of the Veteran’s hypertension as related to service. The Board specifically instructed the examiner to assume that the Veteran is a credible historian. The requested examination was held in May 2016. The examiner opined that due to the absence of documented symptoms, evaluation, diagnosis, or treatment during military service, it was less likely that the Veteran’s current hypertension was related to or onset during service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The May 2016 VA examiner based the opinion on the absence of documented symptoms during service. However, service medical records include a February 1998 cardiology treatment note indicating that the Veteran had been treated for chest pain and pressure in 1989 to 1990, but that he had been pain free for seven years. Additionally, the examiner did not address the Veteran’s statements that he was treated with medication for hypertension off and on in service, with treatment beginning again around 1998. Remand is required for a corrective VA examination to obtain an etiology opinion based on all of the evidence of record. 6. Entitlement to service connection for a right index finger disability is remanded. Previously, in July 2015, the Board found that the Veteran had credibly testified that he lacerated his right index finger in service while helping to carry an engine. The requested examination was held in May 2016. The examiner opined that as there was no documented right hand second digit injury or treatment during military service, it was less likely that the Veteran’s current right hand second digit condition was related to service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). It is important to note that the Board may not rely on a medical opinion that rejects a Veteran’s lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board specifically instructed the examiner to assume that the Veteran is a credible historian. Again, the service medical records from some of the Veteran’s active duty are missing. Remand is required for a VA examination to obtain an etiology opinion that specifically considers and addresses the Veteran’s theory that relates his current right index finger symptoms to an incident during which he lacerated his right index finger in service while helping to carry an engine. 7. Entitlement to an initial disability rating higher than 0 percent for Bell's Palsy is remanded. A January 2016 decision established service connection for Bell’s Palsy and assigned an initial 0 percent rating, effective April 21, 2009. In July 2016, the Veteran submitted a timely notice of disagreement with the established disability rating and effective date of the award. No statement of the case has been issued addressing that issue. Therefore, that claim must be remanded for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Issue a statement of the case addressing the issues of entitlement to an initial rating higher than 0 percent for Bell’s Palsy and effective date of that award. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal if he wants appellate review of those issues. If the Veteran perfects an appeal, complete any indicated development and return the case to the Board. 2. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of claimed right and left knee disabilities. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any disability of either knee. As to any pertinent disability identified on examination, the VA examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any right or left knee disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner should be informed that the service medical records from the Veteran’s first five years of active duty are missing. The examiner is requested to comment on the service treatment record dating from approximately 1996, when the Veteran was 37, which noted complaints of ongoing bilateral knee impairment and an assessment of bilateral patellofemoral syndrome and bilateral patellar tendon laxity. The examiner is further requested to comment on the treatment records which show that the Veteran had a civilian work-related right knee injury in July 2008, the May 2009 physical therapy record which contains the Veteran’s statement that his left knee condition only began about two weeks previously secondary to compensating for right knee pain, and the November 2013 letter from N.M., M.D. Any opinion expressed should be accompanied by a complete rationale. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed right and left ankle disabilities. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any disability of either ankle. As to any pertinent disability identified on examination, the VA examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any right or left ankle disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner should be informed that the service medical records from the Veteran’s first five years of active duty are missing, and the Veteran is to be considered a credible historian. The examiner is requested to comment on the Veteran’s theory that relates current ankle symptoms to work aboard ships on flight decks in service, when he experienced numerous ankle sprains. Any opinion expressed should be accompanied by a complete rationale. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of claimed hypertension. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found. As to any pertinent disability identified on examination, the VA examiner should opine whether it is at least as likely as not (50 percent probability or greater) that hypertension had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner should be informed that the service medical records from the Veteran’s first five years of active duty are missing. The examiner is requested to comment on the February 1998 cardiology service treatment note indicating that the Veteran had been treated for chest pain and pressure in 1989 to 1990, but that he had been pain free for seven years. Additionally, the examiner is requested to address the Veteran’s statements that he was treated with medication for hypertension off and on in service, with treatment beginning again around 1998. Any opinion expressed should be accompanied by a complete rationale. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of a claimed right index finger disability, to include scarring. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any disability of the right index finger, to include scarring. As to any pertinent disability identified on examination, the VA examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any right index finger disability, to include scarring, had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner should be informed that the service medical records from the Veteran’s first five years of active duty are missing, and the Veteran is to be considered a credible historian. The examiner is requested to comment on the Veteran’s theory that relates current right index finger symptoms to a laceration of the right index finger in service while helping to carry an engine. Any opinion expressed should be accompanied by a complete rationale. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel