Citation Nr: 20003192 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-12 314A DATE: January 14, 2020 ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. In a June 2014 rating decision, the RO denied service connection for a low back disorder. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 2. The evidence received since the June 2014 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disorder. CONCLUSIONS OF LAW 1. The June 2014 rating decision denying service connection for a low back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received since the June 2014 rating decision is new and material as to the claim for service connection for a low back disorder, and the claim is reopened. 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 June 1997 to June 2001. He also served in the North Carolina Army National Guard during which time he was ordered to active duty under 10 U.S.C. § 12302 in support of Operation Iraqi Freedom and served on active duty from October 2003 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Law and Analysis In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2018); 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 decision makers; 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 the 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 United States Court of Appeals for Veterans Claims (Court) has held that 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. The RO previously considered and denied a claim for service connection for a low back disorder in a June 2014 rating decision. Specifically, the RO found that the Veteran had a current diagnosis of degenerative disc disease of the lumbar spine, but the evidence did not show that the disorder was related to his military service. The Veteran was notified of the June 2014 rating decision and of his appellate rights, but he did not appeal the determination. Rather, he filed a new claim in May 2015. See Voracek v. Nicholson, 421 F.3d 1299, 1304-05 (Fed. Cir. 2005) (if the claimant states that he wishes to reopen his claim before the appeal period ends, but does not submit new and material evidence, his statement is accepted as a new claim and not as new and material evidence relating to the original claim.) In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the June 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The Board notes that additional service department records were received after the June 2014 rating decision, but they are not relevant to the claim, as they do not provide any evidence pertaining to a low back disorder. 38 C.F.R. § 3.156(c). The evidence received since the June 2014 rating decision includes VA treatment records and lay statements. The Veteran has claimed that he hurt his back in late 1998 during joint training exercises at Fort Irwin while moving tank parts. He has asserted that the June 2014 VA examiner failed to consider that he was an airborne-qualified paratrooper with 35 jumps, 32 of them after he had already hurt his back in 1998. He reported that those jumps aggravated his injury, resulting in constant back pain. He has also explained that his family doctor had his license revoked and that the medical records are unavailable, which is why there is an apparent gap in treatment until 2007. See May 2019 VA Form 9. This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim (nexus with service), and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for a low back disorder is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND Sleep Apnea VA treatment records show that the Veteran was referred for a sleep study in April 2016 and was later diagnosed with obstructive sleep apnea in June 2016. Although the Veteran was not diagnosed with sleep apnea until many years after his military service, he has indicated that he did not realize that he had symptoms until he got married and his wife asked him to seek treatment. In addition, he has claimed that his obstructive sleep apnea is secondary to his service-connected irritable bowel syndrome (IBS). In this regard, he has stated that medical studies show a direct connection between obstructive sleep apnea and IBS. See May 2019 VA Form 9. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has not been afforded a VA examination in connection with the claim, and there is no medical opinion addressing the etiology of his current disorder. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any sleep apnea that may be present. Low Back Disorder The Veteran’s service treatment records document a complaint of low back pain in January 1999. At that time, he reported having low back pain just above his tail bone radiating through the knee. The Veteran indicated that he had been stretching and heard a pop two days earlier and had constant, pinching pain since that time. A physical examination was normal. He was diagnosed with mechanical low back pain, prescribed Motrin, and returned to duty. There was no follow-up treatment for his low back during the remainder of his military service. A May 2007 MRI of the lumbar spine revealed mild to moderate degenerative disc disease at L5-S1 with posterior broad-based disc bulge, slightly contacting the thecal sac and exiting the right S1 nerve root. The remaining lumbar discs appeared to be normal. No disc herniation, spinal canal stenosis, or acute abnormality was present at any level. See May 2007 private treatment record. The Veteran was afforded a VA examination in June 2014 in connection with his claim. The examiner noted a diagnosis of degenerative disc disease of the lumbar spine, as well as the Veteran’s report that developed low back pain around 1999 while lifting tank parts. He indicated that he was evaluated at the aid station and treated with an injection and oral medications with restriction of duties. The examiner opined that the Veteran’s current low back disorder is less likely as not related to military service. In so doing, the examiner noted the diagnosis of mechanical low back pain during service in 1999; however, he fund that there is no evidence of a chronic disability during or after service and no further treatment until 2007. As previously noted, the Veteran has stated that he injured his back in October 1998 during joint training exercises at Fort Irwin while moving tank tracks and sprockets in a field warehouse. According to the Veteran, he was given two days of rest and three days of light duty. He explained that the documented visit to sick call at Fort Bragg in January 1999 was a follow-up visit, as he was still in pain. He has reported continuing low back pain since the October 1998 incident. See December 2013 statement; May 2019 VA Form 9. The Veteran has also claimed that his in-service back injury was worsened by parachute jumps. His service personnel records show that he received his parachutist badge. He has stated that he was an airborne-qualified paratrooper and performed 35 military jumps, 32 of them after hurting his back in 1998. However, the June 2014 VA examiner did not address whether the Veteran’s duties as a paratrooper could have caused his current low back disorder. For these reasons, the Board finds that an additional VA examination and medical opinion are needed to determine the nature and etiology of any low back disorder that may be present. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for sleep apnea and a low back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has sleep apnea that manifested in or is otherwise causally or etiologically related to his military service, including any symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that the Veteran’s sleep apnea was either caused by or aggravated by his service-connected irritable bowel syndrome. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the 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 as it is to find against it.) 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. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran’s low back disorder is causally or etiologically related to his military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should consider the Veteran’s claim that his duties as an airborne-qualified paratrooper, including 35 military jumps, caused his low back disorder. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing these actions, the AOJ should ensure that the examination reports comply with the remand directives. 5. The AOJ should also conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.