Citation Nr: 20002972 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-04 318 DATE: January 14, 2020 ORDER New and material evidence having been received; the claim of entitlement to service connection for obstructive sleep apnea is reopened. REMANDED Entitlement to an initial compensable rating for service-connected back strain is remanded. Entitlement to obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In a final decision issued in October 2015, the RO denied the Veteran’s claim of entitlement to service connection for sleep apnea. 2. Evidence added to the record since the October 2015 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for service connection for obstructive sleep apnea. CONCLUSION OF LAW 1. As new and material evidence has been received since the issuance of a final October 2015 rating decision, the criteria for reopening the claim of entitlement to service connection obstructive sleep apnea have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2006 to August 2013. New and Material In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 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, “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.” In determining whether this 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 by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Sleep Apnea Here, in an October 2015 rating decision, the RO denied the Veteran’s claim for service connection for sleep apnea for lack of a current disability. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In March 2017, the Veteran submitted a claim to reopen his claim for sleep apnea. The evidence of record at the time of the final prior denial in October 2015, included, inter alia, the Veteran’s service treatment records, Veteran lay statements, and VA treatment records. The evidence submitted and obtained since the October 2015 final denial includes Veteran’s lay statements, updated VA treatment records, and a VA examination report. Upon review, the Board finds that this evidence is both new and material sufficient to reopen the Veteran’s claim. The evidence is “new” as it had not been previously considered by VA, and the evidence is “material” because it relates to unestablished facts necessary to substantiate the underlying service connection claim. Specifically, the Veteran’s treatment records reflect a diagnosis of obstructive sleep apnea. As this evidence relates to an unestablished fact, a current diagnosis, reopening of the claim is in order. Shade, 24 Vet. App. 110. REASONS FOR REMAND Back Strain On review, the Board finds that a remand is warranted, as the Veteran’s most recent VA examination report for back conditions in March 2015, is inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court), in Correia has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. On review, the March 2015 VA examination report of record only includes active range of motion findings and do not include range of motion findings for passive range of motion. The examination report also does not specify whether the results are weight-bearing or nonweight-bearing. No substantive explanation is provided as to why such testing was not performed. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary. Additionally, in Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp, at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Here, in a December 2015 VA Form 9, the Veteran stated that he experiences spasms and intense pain at times with respect to his back. The Veteran also indicated that his back pain is so severe that he had to drop out of college. The Board finds that his statement indicates he experiences flare-ups with respect to his service-connected back strain. However, there is no examination or medical evidence of record that provides an estimate of the specific loss of range of motion during such episodes. Additionally, the Board finds that the Veteran’s statement also indicates a worsening of the symptoms of his back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, a remand for a new VA examination to assess the current severity of the Veteran’s service-connected back strain is warranted. Obstructive Sleep Apnea In the present case, the Veteran’s representative contends that the Veteran’s obstructive sleep apnea is secondary to his service-connected PTSD. Although the Veteran was provided a VA examination for sleep apnea in May 2017, the VA examiner did not provide an opinion as to whether the Veteran’s sleep apnea is secondary to his service-connected PTSD. Given such, a remand for an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to clarify the severity of his back strain. Access to the Veteran’s electronic claims file should be made available to the examiner for review in connection with the examination. The examination report should include the range of motion of the spine in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination in relation to the Veteran’s spine. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should also, to the extent possible, provide a retrospective opinion addressing prior range of motion of the Veteran’s back strain, painful motion (and at what point it started), additional loss of motion after repetitions, and function loss due to pain -considering active and passive motion as well as weight-bearing and nonweight-bearing considerations-throughout the claims period. If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination. The examiner should also state whether the Veteran’s back strain results in incapacitating episodes manifested by physician-prescribed bed rest. If so, the examiner should report the dates and durations of these incapacitating episodes. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. As here, the Veteran describes back spasms that result in intense pain. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examination report should also identify all neurological manifestations of the Veteran’s spine, if any. 2. Request an addendum opinion from a qualified medical examiner with respect to the Veteran’s obstructive sleep apnea claim. After review of the record, the VA examiner is asked to address the following: (a) Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s obstructive sleep apnea is: (1) proximately caused by, or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran’s service-connected PTSD. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that 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 the conclusion (e.g., etiology) as it is to find against the conclusion. (b) Whether the obstructive sleep apnea is at least as likely as not related to his service. The examiner should discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of a sleeping problems. S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, Associate 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.