Citation Nr: 19123762 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 15-27 832 DATE: March 29, 2019 ORDER New and material evidence having been received, the claim for service connection for shin splints is reopened. REMANDED Entitlement to service connection for shin splints is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for bilateral carpel tunnel syndrome is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for shin splints was previously denied by an August 2013 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the August 2013 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for shin splints, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2013 rating decision denying service connection for shin splints is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for shin splints. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to July 2003, December 2003 to March 2005, and August 2008 to October 2009. This matter is on appeal to the Board of Veterans’ Appeals (Board) from May 2014, July 2015, and August 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for service connection for residuals of a TBI was originally denied by the RO in an August 2013 rating decision. In July 2016, the Veteran was notified that he had been identified as a Veteran who was provided with a TBI examination that had not been conducted by a neurologist, psychiatrist, physiatrist, or neurosurgeon and was therefore eligible for a new TBI examination by an appropriate specialist. The Secretary granted equitable relief and reprocessed the Veteran’s claim in accordance with Policy Letter 21-16-03. The Veteran was thereafter provided with an August 2016 TBI examination conducted by an appropriate staff neurologist. The RO subsequently denied the Veteran’s TBI claim in an August 2016 rating decision. Accordingly, the Board is reviewing the Veteran’s claim for service connection for a TBI on the merits and reopening of the claim is not necessary. In September 2018, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. New and Material Evidence Shin Splints Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 received 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Veteran’s claim for service connection for shin splints was originally denied in an August 2013 rating decision on the basis that his disability was not incurred or aggravated during a period of active duty. The Veteran filed a Notice of Disagreement in October 2013, and the RO issued a Statement of the Case (SOC) in June 2014. The Veteran did not file a substantive appeal in response to the SOC, nor was any new and material evidence actually or constructively received within a year following the decision or within 60 days from when the SOC was issued; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. At the time of the August 2013 rating decision, the evidence of record showed that the Veteran had bilateral shin pain that caused limping after running longer than one mile, as shown in March 2010, March 2011, and September 2011 VA treatment records. The record also contained personnel records showing that the Veteran had served for several years in the Army National Guard, in addition to his period of active duty stated above. Since the August 2013 rating decision, the Veteran has provided new evidence in the form of lay statements at a September 2018 hearing. The Veteran clarified the date of incurrence by stating: “It was during basic [training], my shins were just aching real bad. The drill instructors sent me to sick call to get checked for shin splints. The doctors come back and they determined that the tibia was actually herniated in both legs.” He also stated: “They said they could perform surgery right then if it was that severe. If it was not severe enough that I felt like that I could go on, finish up. I had, I think, two weeks left.” The new evidence submitted by the Veteran relates to the basis for the original denial and raises a reasonable possibility of substantiating the Veteran’s claim that his current disability was incurred in service. Accordingly, this evidence is new and material to the case at hand. The Board therefore finds that the Veteran’s claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for shin splints is remanded. The Veteran contends that he has shin splints that are related to service. The Veteran is currently diagnosed with shin splints, as reflected in April 2010 VA treatment records, and he contends that his shin splints developed during basic training. A VA examination is necessary to determine the etiology of the Veteran’s current disability, as one has not been scheduled. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is related to service, including secondarily to his service-connected posttraumatic stress disorder (PTSD). In May 2014, the Veteran was provided with a VA examination to determine the etiology of his current disability. The examiner opined that the Veteran’s condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that, although the Veteran’s service treatment records indicate a one-time complaint of sleeping problems in December 2009, there was no further evidence indicating that a chronic condition developed and no evidence indicating continuity of symptoms. The examiner stated that there was no nexus to the sleep disorder in service and no evidence in medical literature of a causal relationship between obstructive sleep apnea and “exposure experienced by service members in South West Asia.” The Veteran reported during the September 2018 hearing that he had snored loudly while in service and that his bunkmate had difficulty falling asleep due to the Veteran’s loud snoring. The May 2014 examiner noted a post-deployment health assessment (PDAHRA) of sleeping problems; however, the examiner noted that there was no evidence of complaints, treatment, or diagnosis while in service otherwise. As the Veteran’s recent lay statements indicate that he experienced sleep symptoms during service, a new opinion should be obtained that considers these statements. An August 2016 VA examination which addressed the Veteran’s service-connected PTSD shows that the Veteran has subjectively reported that his sleep apnea was “relevant to the understanding or management” of his service-connected mental health condition. However, the May 2014 sleep apnea nexus opinion does not address whether the Veteran’s sleep apnea is caused or aggravated by his service-connected disabilities; thus, the opinion should also address secondary service connection. 3. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. The Veteran contends that he has bilateral carpal tunnel syndrome that is related to service. The Veteran reported in a May 2015 VA examination that his current disability began while in service when a spring broke while he was changing brakes on a military vehicle. He also stated that he had tingling in his fingers, difficulty holding objects, and the condition had worsened. Additionally, the Veteran testified at the September 2018 hearing that his job duties during service required constant use of his hands, including as a construction equipment repairman. In a May 2015 VA examination, the examiner opined that it was less likely than not that the Veteran’s current disability was incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale: “Veteran has a diagnosis of Right Carpal Tunnel Syndrome. I do not see any connection of this diagnosis to ‘related to: Non PTSD Personal Trauma)’ [sic] as stated above.” This rationale does not appear to have considered the in-service event described by the Veteran or explain why the in-service event is not likely to have been the cause of the Veteran’s current disability. It also did not consider the nature of the Veteran’s duties during his service. In addition, a clarification of the Veteran’s current disability is necessary to decide the claim. The Veteran has claimed bilateral carpal tunnel syndrome. The record contains extensive evidence showing that the Veteran has right carpal tunnel syndrome and underwent open carpal tunnel release surgery on the right extremity in 2015. However, other medical records do not specify that his condition is limited to the right extremity, as reflected in May 2015 VA treatment records which state that the Veteran has “carpal tunnel syndrome” and January 2015 VA treatment records show that “he has recently been diagnosed with carpal tunnel syndrome.” The May 2015 VA examination generally diagnosed carpal tunnel syndrome, but then indicated that the left median nerve was normal. Therefore, it is unclear whether the Veteran has carpal tunnel syndrome in the left upper extremity. Whether the Veteran currently has a neurological disability of the left upper extremity should be clarified on remand. 4. Entitlement to service connection for residuals of a TBI is remanded. The Veteran contends that he is entitled to service connection for residuals of a TBI. As discussed above, the Veteran was provided with August 2013 and August 2016 VA examinations for his TBI claim. During the August 2016 VA examination and September 2018 hearing, the Veteran reported that he experiences memory loss and difficulty concentrating and focusing. However, the August 2016 examiner did not provide a clear opinion as to whether these symptoms are residuals of a TBI. Accordingly, an addendum opinion is necessary to determine whether the symptoms reported by the Veteran are attributable to the residuals of a TBI. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2017 to the present. 2. After obtaining any additional records, schedule an examination or examinations for the Veteran’s shin splint, sleep apnea, carpal tunnel syndrome, and residuals of TBI claims. Provide the examiner(s) with the claims file for review. Based on the factual evidence of record, the examiner(s) is asked to provide opinions that address the following: Shin Splints: Is it at least as likely as not (defined as a 50 percent or better probability) that the Veteran’s shin splints are related to service, to include an incident during basic training? Sleep Apnea: (a.) Is it at least as likely as not (defined as a 50 percent or better probability) that the Veteran’s sleep apnea was incurred in or caused by service? The examiner is asked to consider the record as a whole, to include the lay statements provided during the September 2018 videoconference hearing regarding observed symptoms during his service. (b.) Is it at least as likely as not (defined as a 50 percent or better probability) that the Veteran’s sleep apnea is caused by his service-connected disabilities, to include PTSD? (c.) Is it at least as likely as not (defined as a 50 percent or better probability) that the Veteran’s sleep apnea is aggravated by (i.e., any worsening of the condition beyond its natural progression) his service-connected disabilities, to include PTSD? Carpal Tunnel: (a.) Clarify whether the Veteran has carpal tunnel or any other neurological disability in the left upper extremity (including if there are symptoms, such as numbness, that cause functional impairment). (b.) Is it at least as likely as not (defined as a 50 percent or better probability) that the Veteran’s carpal tunnel syndrome is related to his service, to include the nature of his duties therein? TBI: Is it at least as likely as not (defined as a 50 percent or better probability) that symptoms experienced by the Veteran, to include memory loss and concentration difficulties, are attributable to the residuals of a TBI? The examiner is asked to consider the record as a whole, to include the lay statements provided during the September 2018 videoconference hearing regarding the nature of TBIs experienced during his service in Southwest Asia. The examiner is asked to provide a complete rationale for any opinion provided, with specific consideration given to the pertinent medical opinions and examination reports already of record. If the examiner is unable to provide a requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. H. White, Associate Counsel