Citation Nr: 19154392 Decision Date: 07/16/19 Archive Date: 07/15/19 DOCKET NO. 18-42 704A DATE: July 16, 2019 ORDER New and material evidence has not been received that is sufficient to reopen the claim for service connection for a back disability; the claim is not reopened. Entitlement to service connection for a left leg disability (neuropathy of the left leg), to include as secondary to a back disability, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected status post left maxillary sinusotomy with headaches (sinus disability) is remanded. Entitlement to a rating higher than 10 percent for service-connected status post left maxillary sinusotomy with headaches (also claimed as migraines) is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. A March 1995 RO decision denied service connection for low back pain on the basis that the claim was not well-grounded. 2. The evidence received since the March 1995 RO decision, which found that the Veteran’s low back claim was not well-grounded, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating this claim. 3. The Veteran does not have a left leg disability that is related to his active duty service and the competent and credible evidence fails to establish an etiological relationship between the Veteran’s claimed left leg disability and his active service or a service-connected disability. CONCLUSIONS OF LAW 1. The March 1995 rating decision that denied service connection for low back pain, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103 (2018). 2. The evidence received subsequent to the March 1995 rating decision is not new and material, and the requirements to reopen the claim of entitlement to service connection for a low back disability have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. A left leg disability was not incurred in or aggravated by service and may not be presumed related to a service-connected disability. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1977 to August 1994. These matters are on appeal from a February 2016 rating decision. In an April 2016 notice of disagreement and September 2018 substantive appeal, the issues of entitlement to an increased rating for tinnitus and a bilateral eye disability appear to be raised by the Veteran. These recent claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2018). New and Material Evidence Claim A March 1995 RO decision denied service connection for low back pain on the basis that the claim was not well-grounded on the basis that there was no permanent residual or chronic disability in the service treatment records (STRs) or post-service evidence. Although the RO reopened the claim in a July 2018 Statement of the Case, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160 (d), 20.302, 20.1103 (2018). Since the Veteran did not appeal the March 1995 decision or submit any additional evidence within one year of the decision, the decision became final. See 38 U.S.C. §§ 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.156, 20.302, 20.1103 (2018). The Veteran most recently submitted his application to have the previously denied claim reopened in June 2015. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). New and material evidence is defined as 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 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). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Veterans Court) held that 3.159(c)(4) does not require new and material evidence as to each previously unproven element in order for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Veterans Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. The standard is low. However, it must be met to reopen the claim. The pertinent evidence of record at the time of the March 1995 rating decision included the Veteran’s STRs, VA examination reports, and a statement from the Veteran. It is important for the Veteran to understand that one of the unestablished facts necessary to substantiate service connection for his low back disability is evidence that the claimed disability is etiologically related to his service. The evidence received since the March 1995 RO decision consists of private and VA treatment records, statements from the Veteran, and a November 2015 VA back Disability Benefits Questionnaire (DBQ) examination and medical opinion. The newly-received VA and private treatment records do not indicate that the Veteran has any low back disability that is related to or was aggravated by his service. The Board finds that, as the new evidence does not address any unestablished fact necessary to establish service connection for the claimed disabilities in a way that raises a reasonable possibility of substantiating the claim but is cumulative and redundant of evidence already of record, the additional evidence is not new and material. Regarding the Veteran’s newly-submitted lay statements, these written assertions merely demonstrate the Veteran’s continued assertions that the claimed low back disability is related to service. The Board finds that, as the new evidence does not address any unestablished fact necessary to establish service connection for the claimed disability in a way that raises a reasonable possibility of substantiating the claim, but is cumulative and redundant of evidence already of record, the additional evidence is not new or material. The Veteran is simply stating his claim once again without providing new and material evidence. Regarding the November 2015 VA examination and medical opinion, the VA examiner opined that the Veteran’s intervertebral disc syndrome was not related to his service. The Board finds this determination is adverse to the Veteran’s claim on appeal and such adverse evidence cannot be used as the basis for reopening. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992) (holding that evidence which is unfavorable to a claimant’s case may not ‘trigger a reopening’ of the claim). In this regard, it is important for the Veteran to understand that even if the Board reopened the claim the “new” evidence (the VA examination) would only provide more highly probative evidence against the claim, providing more evidence against this claim beyond the evidence that existed in the prior rating action. Reopening the claim at this point does not provide a basis for this claim to be granted based on this evidence. As a result, the Board finds that the newly received evidence does not relate to an unestablished fact necessary to substantiate the claim on appeal, thus is not new and material and this claim is not reopened. 38 C.F.R. § 3.156 (a). The Board notes that the Veteran has been notified in writing of the reasons for the denial of service connection and for the reasons of the denial of his application to reopen. He has offered no additional information regarding the claim that would provide a reasonable basis for further development. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim of entitlement to service connection for a low back disability has not been received. As such, the RO’s March 1995 decision remains final, and the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Claim 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 (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, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends that he has a left leg disability that is related to his low back disability. In this regard, the Veteran has not asserted, nor does the record reflect that either his left leg symptoms, first manifested during service or were otherwise related to any aspect of his service. It has only been claimed that the disability is secondary to the low back disability. Accordingly, since the Veteran does not contend that his left leg disability, claimed as peripheral neuropathy, is directly related to service and because the record similarly does not reasonably raise the theory of direct service connection, the Board will address only whether the Veteran is entitled to service connection for this disability on a secondary basis. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding “that the Board is not required sua sponte to raise and reject ‘all possible’ theories of entitlement in order to render a valid opinion” and “commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009) (stating that “[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory”). Since service connection has not been granted for a low back disability, a low back disability may not serve as a predicate service-connected disability upon which to base his claim, and the claim based on “secondary” service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no evidence to show that a service-connected disability caused or aggravated any left leg disability. The findings set forth earlier in this decision reflect that service connection for a low back disability has not been established. As such, there is no factual or legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. See 38 C.F.R. 3.310. REASONS FOR REMAND 1. Sinus and left ear hearing loss disabilities The Veteran contends that his service-connected sinus disability and left ear hearing loss are more severe than his current ratings and warrant higher ratings. In a June 2019 Brief, the Veteran’s representative stated that the Veteran’s most recent November 2015 VA examinations are stale. In this regard, VA must provide a new examination when a Veteran claims that a disability is worse than when originally rated or when the available evidence is too old to adequately evaluate the current state of the condition, such as the argument in the present case. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Here, in addition to the fact that the most recent examinations are over three years old, the most recent records do not contain sufficient evidence to evaluate the current severity of the Veteran’s service-connected disabilities. As such, the Veteran should be afforded new VA examinations in order to ascertain the current level of severity of his service-connected sinus and left ear hearing loss disabilities. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). VAOPGCPREC 11-95 (1995) Regarding the left ear hearing loss claim, the Veteran submitted an April 2015 private audiological report which contains audiometric test results presented in a graphical, rather than numeric form. While the Board may be able to interpret such graphic representations in some instances, since the Board is remanding this case for further development it would be helpful for the audiologist to provide this information in numeric form. 2. Sleep apnea The Veteran contends that he has sleep apnea related to his service or to his service-connected sinus disability. A September 2017 VA sleep evaluation indicates a relationship between the Veteran’s sleep apnea and headaches. The Veteran has not yet been afforded a VA examination regarding his claim for service connection for sleep apnea. On remand, a VA examination and medical opinion regarding the etiology of his claimed sleep apnea should be obtained. The matters are REMANDED for the following actions: 1. Send a letter to the Veteran and request that he complete, sign, and return a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the audiologist who performed the private April 2015 hearing assessment. If the Veteran submits a VA Form 21-4142 that is insufficient for further action, he should be notified, and any such notification should be properly documented in the claims file. 2. Then, contact the April 2015 private audiologist to confirm whether the Maryland CNC test was used and request that the audiologist convert the graphical audiogram results into numerical data. 3. After the foregoing has been completed, schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his service-connected left ear hearing loss disability. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should report the extent of the Veteran’s disability in accordance with VA rating criteria and include an opinion regarding the functional effects caused by the Veteran’s left hearing loss disability. 4. Schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his service-connected sinus disability. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. 5. Schedule the Veteran for a VA examination which addresses the nature and etiology of the Veteran’s sleep apnea. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or more probability) that the Veteran’s sleep apnea, had its onset in or is etiologically-related to the Veteran’s active duty service? b) If the Veteran’s sleep apnea has not been related to his service, is it at least as likely as not (50 percent probability or more) that his sleep apnea is (a) proximately due to or the result of the Veteran’s service-connected sinus disability, or (b) aggravated by his service-connected sinus disability? If it is determined that the sleep apnea is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset. The examiner should review and address the lay statements from the Veteran and his friends/family concerning his sleep apnea. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. The report of examination should include the complete rationale for all opinions expressed. (Continued on the next page)   (Continued on the next page) KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.