Citation Nr: 19127361 Decision Date: 04/09/19 Archive Date: 04/09/19 DOCKET NO. 15-06 406A DATE: April 9, 2019 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A March 1993 rating decision, inter alia, denied service connection for a low back disability. The appellant was duly notified of the RO’s determination and his appellate rights but did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. 2. Evidence received since the final March 1993 rating decision denying service connection for a low back disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a low back disability. CONCLUSIONS OF LAW 1. The March 1993 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a low back disability. 38 U.S.C. §§ 5107, 5108 (2018); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from May 1990 to February 1993. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for sleep apnea comes from an August 2010 rating decision; and the application to reopen the previously denied claim of service connection for a low back disability comes from a November 2015 rating decision. The appellant was afforded a hearing by videoconference before the undersigned in August 2018. A transcript is of record. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. 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 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, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). Analysis A March 1993 rating decision, inter alia, denied service connection for a low back disability because there was no evidence of a current disability. The appellant was duly notified of the RO’s determination and his appellate rights but he did not appeal within the applicable time period, nor was new and material evidence received in the year following notification of the decision. Thus, the decision is final and not subject to revision on the same factual basis. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in March 1993. The additional evidence includes the report of a June 2015 contracted examination during which a diagnosis of degenerative disc disease with intervertebral disc syndrome was rendered. This evidence is new, as it was not before the RO at the time of its March 1993 rating decision. Further, presuming its credibility as required by Justus, it is material, as it relates to an unestablished fact necessary to substantiate the claim. Service connection was denied, in part, because the RO determined that the appellant did not have a current back disability. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant’s previously denied claim of service connection for a low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. REASONS FOR REMAND The appellant was afforded a contracted examination for his back in June 2015. A medical opinion was obtained in January 2018. The appellant was afforded a contracted examination for sleep apnea in September 2014. A medical opinion was obtained in February 2016. During his August 2018 hearing, the appellant testified that in the Fall of 1990, he was deployed to fight forest fires in California. He described one occasion where a tree rolled downhill and struck him in his lower back. The appellant testified that the tree pinned him down for approximately five minutes. He estimated that the tree trunk was 30 to 50 feet long and two to three feet in diameter. Due to his continuing back pain, he reported that he was unable to exercise and he ended up gaining a great deal of weight. The appellant did not report this incident during his June 2015 examination. He contended that the examiner did not phrase any questions in a way which would have elicited a response regarding the incident. With respect to sleep apnea, the appellant and his attorney set forth multiple theories as to why his sleep apnea was causally related to his active service. He reported colliding with another soldier during a game of football in 1990, during which he sustained a concussion and injured his nose. He reported that eventually underwent two surgeries to repair his sinuses and nasal cavity, which modified the way he breathed. He testified that he began to snore following such surgeries. He also testified that, while in a chow line, another soldier accidentally struck the appellant in the nose with the butt of a large automatic weapon. He testified that his nose was re-broken from the impact. The appellant reported that his breathing was worse after this incident. He reported that the two aforementioned surgeries occurred a few months after the re-breaking of his nose. He reported that the surgeries restored approximately 75 percent of his breathing capacity in his nose. The attorney contended that service connection for sleep apnea should be considered as (a) due to the two reported facial traumas in service; (b) secondary to his back disability, on the theory that his back disability caused him to gain weight as a result of not being able to exercise; and (c) secondary to service-connected traumatic brain injury. As a general matter, obesity is not considered a disease or injury for purposes of 38 U.S.C. § 1110 and 1131, and therefore may not be service connected on a direct basis. See VAOPGCPREC 1-2017 (Jan. 6, 2017). However, as recently discussed in a precedential opinion issued by VA’s Office of General Counsel (OGC), obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a). VAOPGCPREC 1-2017 (Jan. 6, 2017). The June 2015 back examiner did not address the appellant’s contented tree trunk injury to his back. While the negative January 2018 medical opinion regarding the appellant’s back disability considers the appellant’s report of being injured by a tree trunk, it is conclusory. Most of the probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Likewise, the February 2016 sleep apnea opinion is conclusory. Further, neither the September 2014 nor the February 2016 opinions consider all of the appellant’s theories of entitlement with respect to sleep apnea. When VA undertakes to provide an examination or obtain an opinion, it must ensure that such is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that medical opinions from appropriate clinicians should thus be obtained as to the nature and etiology of the appellant’s low back disability and sleep apnea. While the attorney requested that new examinations be ordered, the Board will leave it to the professional discretion of the clinician(s) rendering the requested opinions as to whether additional examinations of the appellant are necessary. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician with respect to the nature and etiology of the appellant’s diagnosed degenerative disc disease with intervertebral disc syndrome. The claims file must be made available to and reviewed by the clinician rendering the requested opinion. Whether an examination of the appellant is necessary is left to the discretion of the clinician rendering the requested opinion. After reviewing the claims file, the examiner should opine as to the following: Is it at least as likely as not (50 percent or greater probability) that the appellant’s diagnosed back disability had its inception during a period of active service or is otherwise causally related to the appellant’s active service or any incident therein, to include the reported tree trunk injury? The examiner’s attention is directed to the June 2015 examination report, the January 2018 opinion, and the appellant’s August 2018 testimony. 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. 2. Obtain a medical opinion from an appropriate clinician with respect to the nature and etiology of the appellant’s sleep apnea. The claims file must be made available to and reviewed by the clinician rendering the requested opinion. Whether an examination of the appellant is necessary is left to the discretion of the clinician rendering the requested opinion. After reviewing the claims file, the examiner should opine as to the following: Is it at least as likely as not (50 percent or greater probability) that the appellant’s sleep apnea had its inception during a period of active service or is otherwise causally related to the appellant’s active service or any incident therein, to include the two reported facial traumas, a football collision and being struck by the butt of a firearm? If not, is it at least as likely as not that sleep apnea is causally related to (i) his diagnosed low back disability which he contends caused him to be unable to exercise, which led to weight gain, or (ii) his service-connected TBI? If neither, it is at least as likely as not that sleep apnea was aggravated by (i) his diagnosed low back disability which he contends caused him to be unable to exercise, which led to weight gain, or (ii) his service-connected TBI? If aggravation is found, the examiner must attempt to establish a baseline level of severity for the disability, prior to aggravation by the service-connected disability or disabilities. The examiner’s attention is directed to the September 2014 examination report, the February 2016 opinion, and the appellant’s August 2018 testimony. (Continued on the next page)   A clear rationale for all opinions is required. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel