Citation Nr: 19145604 Decision Date: 06/12/19 Archive Date: 06/12/19 DOCKET NO. 17-44 969 DATE: June 12, 2019 ORDER Reopening of the previously denied claim for service connection for a left knee disorder is granted. Reopening of the previously denied claim for service connection for obstructive sleep apnea (OSA) is granted. The claim for service connection for OSA as secondary to the service-connected diabetes mellitus and is granted. REMANDED The claim for service connection for a left knee disorder to include DJD, including as the result of service-connected disabilities, is remanded. FINDINGS OF FACT 1. An unappealed April 2007 rating decision denied service connection for a left knee disorder due to a lack of nexus between the current disability and active service or a service-connected disability. 2. New and material evidence has been submitted to reopen the previously denied claim of service connection for a left knee disorder, to include DJD. 3. An unappealed January 2015 rating decision denied service connection for OSA, due to a lack of nexus between the current disability and active service or a service-connected disability. 4. New and material evidence has been submitted to reopen the previously denied claim of service connection for OSA. 5. OSA is at least in part the result of medications prescribed for the service-connected diabetes mellitus, and to post-service treatment for the service-connected residuals of left lower lobectomy with bronchial asthma associated with left lower lobectomy, secondary to intralobar pulmonary sequestration, and thoracotomy syndrome. CONCLUSIONS OF LAW 1. The April 2007 rating decision which denied service connection for a left knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to open the previously denied claim for service connection for a left knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The January 2015 rating decision which denied service connection for OSA is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 4. New and material evidence has been received to open the previously denied claim for service connection for OSA. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for service connection for OSA, as the result of medications prescribed for the service-connected diabetes mellitus, and to post-service treatment for the service-connected residuals of left lower lobectomy with bronchial asthma associated with left lower lobectomy, secondary to intralobar pulmonary sequestration, and thoracotomy syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active service from February 1987 to March 1994. This appeal comes before the Board of Veteran’s Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Muskogee, Oklahoma that reopened the previously denied claims for service connection for a left knee disorder and for OSA, but denied the claims on the merits. Despite any determination reached by the agency of original jurisdiction (AOJ), the Board must conduct an independent review of the evidence to determine whether new and material evidence has been received in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The claims have been recharacterized as reflected on the front page of this decision. New and Material In an April 2007 rating decision service connection was originally denied for a left knee disorder, to include as the result of service-connected residuals, left lower lobectomy, with bronchial asthma and secondary to pulmonary sequestration, on the basis that the medical evidence did not reflect medical evidence of a causal nexus between the then-diagnosed left knee disability, including DJD, and the Veteran’s active service or any service-connected disability. The Veteran did not appeal this decision, and no relevant additional evidence was received within the year after notification of the decision. It became final. In a January 2015 rating decision service connection was originally denied for OSA, to include as the result of service-connected residuals, left lower lobectomy, with bronchial asthma and secondary to pulmonary sequestration, on the basis that the medical evidence did not reflect medical evidence of a causal nexus between the then-diagnosed OSA and the Veteran’s active service or any service-connected disability. The Veteran did not appeal this decision, and no relevant additional evidence was received within a year after notification of the decision. It became final. 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). Since the 2007 and 2015 rating decisions, the Veteran has presented the 2018 medical statement of his private treating physician, M.C.-S., M.D. in which the physician opines that the Veteran’s weight gain is aggravated by insulin prescribed for his service-connected diabetes. In addition, the physician stated that it is her medical opinion that the Veteran’s medical conditions are as likely as not caused by or aggravated by the service-connected thoracotomy syndrome. See May 2018 Medical Opinion by Dr. M.C.-S. (filed in Medical Treatment Records – Non-Government (rec’d 7/23/20180, p. 2 of 3)). This medical evidence of a causal nexus between the diagnosed left knee DJD and OSA and the Veteran’s service-connected diabetes mellitus and pulmonary disorders is new and material, and the claims are therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Service Connection Under the relevant laws and regulations, 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 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran claims service connection for OSA to as the result of his service-connected pulmonary condition. There is no dispute that the Veteran is currently diagnosed with and treated for OSA. See, generally, CAPRI Treatment Records; see also Private Treatment Records (PMR) (rec’d 8/8/2003). In addition, the record reflects he is service-connected for diabetes mellitus; residuals of left lower lobectomy with bronchial asthma, associated with left lower lobectomy and secondary to intralobar pulmonary sequestration; and thoracotomy syndrome. Thus, the first and second elements of Shedden are met. In addition, the Board finds no dispute as to the third element, that of a causal link, or nexus. The Veteran argues, in essence, that his OSA is the result of weight gain that has been caused by his service-connected disabilities, and the medications prescribed for them. As noted above, the record now contains the opinion of Dr. M.C.-S., M.D. in which the physician opines that the Veteran’s weight gain is aggravated by insulin prescribed for his service-connected diabetes. Moreover, a longitudinal review of the record shows that the Veteran’s weight issues have been longstanding, yet limited; and were attributed during active service to post-service post-surgical treatment, including prescribed steroids and inactivity, for residuals of the left lower lobectomy and intralobar pulmonary sequestration from 1990 to 1993—conditions which are now service connected. Service treatment records (STRs) reflect that following thoracotomy with excision of pulmonary sequestration, he experienced chronic thoracotomy pain. His weight gain began after he was placed on steroid injections for post-thoracotomy syndrome. His weight increased from 191 pounds pre-surgery to 229 pounds by 1993. His report of medical evaluation board (MEB) findings reflect two diagnoses, post thoracotomy syndrome secondary to left lower lobectomy for pulmonary sequestration and weight gain secondary to diminished activity, postoperatively, as well as steroid therapy. VA examination in 2016 reflects his weight increased to 250 pounds by 2003; and VA treatment records, to 257 pounds in 2015. This is a total gain of 66 pounds since 1990. See Service Treatment Records (STRs); see also December 2003 VA Examination for Respiratory; December 2011 Statement of R.M.L., M.D. (filed in Medical Treatment Record – Non-Governmental (rec’d 12/11/2014), p. 22 of 24). Finally, the 2003 VA examiner opined that the Veteran’s OSA is due to weight gain found to be, at least in part, due to medications prescribed for his service-connected pulmonary condition. Specifically, the 2003 VA examiner explained the relationship between the Veteran’s then-claimed OSA and his weight gain thusly: In summary, this patient underwent a left lower-lobectomy while in the military in August 1990. Subsequently, he suffered significant weight gain, and this is attributed to his service-connected illness by his military physicians. His documented restrictive lung disease is due both to his thoracotomy, and his weight gain. Exercise limitation is further worsened by his reactive airways disease, which also appears to be service-connected. Obstructive Sleep Apnea, requiring both CPAP and nocturnal supplemental oxygen use, is also a consequence of this weight gain. See December 2003 VA Examination for Respiratory, p. 2 of 2. The Board finds this opinion, combined with Dr. M.C.-S.’s opinion that the Veteran’s weight gain is aggravated by insulin prescribed for his service-connected diabetes, sufficient medical evidence to establish that the claimed OSA is secondary to the Veteran’s weight gain, which is the result of his service-connected diabetes mellitus, residuals of left lower lobectomy with bronchial asthma associated with left lower lobectomy, secondary to intralobar pulmonary sequestration, and thoracotomy syndrome. In so holding, the Board notes the June 2016 VA examination in which the VA examiner opined that it is less likely than not that the claimed OSA was the result of active service or of service-connected disabilities, particularly that the OSA was not the result of weight gain caused by medications, i.e., steroids, prescribed for the service-connected residuals of lobectomy and asthma. The VA examiner’s rationale was that the Veteran’s OSA was caused by the recurrent collapse of the pharyngeal airway during sleep, rather than weight gain. However, the VA examiner made no reference to the findings of the 2003 VA examination or the MEB findings, in which weight gain was originally discussed as a direct result of the post-surgical treatment for the Veteran’s lung disorder and its residuals. Thus, as the VA examiner did not demonstrate that it had reviewed the entire record in arriving at the findings articulated in the 2016 VA examination, the Board finds it to be of less probative weight than the 2018 private opinion, the 2003 VA examination opinion, and the inservice MEB findings. See Washington v. Nicholson, 19 Vet. App. 362, 36667 (2005). There are no other findings, evidence or medical statements against a finding that OSA is not causally related to weight gain which, in turn, is etiologically related to the medications prescribed for the service-connected diabetes mellitus, and to post-service treatment for the service-connected residuals of left lower lobectomy with bronchial asthma associated with left lower lobectomy, secondary to intralobar pulmonary sequestration, and thoracotomy syndrome. The Board finds that element three of Shedden is met. Accordingly, service connection for OSA is warranted. REASONS FOR REMAND The claim for service connection for a left knee disorder to include DJD is reopened. However, the evidence of record in insufficient to adjudicate the claim. The June 2016 VA examiner determined that the Veteran’s left knee disability was not due to or the result of weight gain caused by service-connected disabilities, including medications prescribed to treat the residuals of lobectomy and asthma. However, as discussed in the decision above, the 2016 VA examiner made no reference to the findings of the 2003 VA examination or the MEB findings, in which weight gain was originally discussed as a direct result of the post-surgical treatment for the Veteran’s lung disorder and its residuals. Moreover, the VA examiner did not consider whether the Veteran’s weight gain, which has been found to be the result of medications prescribed for the service-connected diabetes mellitus as well as post-surgical treatment for the service-connected pulmonary condition. Accordingly, the Board finds additional VA examination must be accorded the Veteran to determine the nature and etiology of the diagnosed left knee disorder. The matters are REMANDED for the following action: 1. Ensure all necessary relevant private and VA treatment records are obtained. 2. Schedule the Veteran for a VA examination for joint disorders; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed left knee joint pathology. 3. For any identified left knee joint pathology, including DJD, the examiner must opine as to whether such is as likely as not related to any of the Veteran’s service-connected disorders to include medications prescribed for the service-connected diabetes mellitus, and to post-service treatment for the service-connected residuals of left lower lobectomy with bronchial asthma associated with left lower lobectomy, secondary to intralobar pulmonary sequestration, and thoracotomy syndrome or, in the alternative, to military service or any incident therein. 4. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel