Citation Nr: 20021965 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 19-35 487 DATE: March 30, 2020 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a left hip disability is granted. Entitlement to service connection for osteoarthritis of the lumbar spine is denied. Entitlement to service connection for osteoarthritis of the cervical spine is denied. Entitlement to service connection for osteoarthritis of the right hip is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. In a January 2015 rating decision, the RO denied the Veteran’s claim of service connection for a sleep condition. Although he was duly notified of the RO’s decision and his appellate rights, the Veteran did not initiate an appeal within the applicable time period nor was new and material evidence received within one year. 2. In a June 2016 rating decision, the RO denied the Veteran’s claim of service connection for a left hip disability. Although he was duly notified of the RO’s decision and his appellate rights, the Veteran did not initiate an appeal within the applicable time period nor was new and material evidence received within one year. 3. Evidence received since the final January 2015 rating decision denying entitlement to service connection for a sleep condition relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for sleep apnea. 4. Evidence received since the final June 2016 rating decision denying entitlement to service connection for a left hip disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for a left hip disability. 5. The available record on appeal contains no indication that the Veteran currently has osteoarthritis of the lumbar spine which is causally related to his active service. 6. The available record on appeal contains no indication that the Veteran currently has osteoarthritis of the cervical spine which is causally related to his active service. 7. The available record on appeal contains no indication that the Veteran currently has osteoarthritis of the right hip which is causally related to his active service. CONCLUSIONS OF LAW 1. The January 2015 rating decision denying service connection for a sleep condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The June 2016 rating decision denying service connection for a left hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to warrant reopening of the claim of service connection for sleep apnea. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to warrant reopening of the claim of service connection for a left hip disability. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for osteoarthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for osteoarthritis of the cervical spine have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for osteoarthritis of the right hip have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2010 to July 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, confirmed and continued the previous denial of service connection for sleep apnea and osteoarthritis of the left hip and denied service connection for osteoarthritis of the lumbar spine, cervical spine, and right hip. Under the circumstances of this case, the Board has recharacterized the Veteran’s claim of service connection for osteoarthritis of the left hip more broadly as a claim of service connection for a left hip disability. In light of the remand below, no prejudice to the Veteran has resulted from the Board’s recharacterization of the issue. Bernard v. Brown, 4 Vet. App. 384 (1993) (holding that before the Board may address a matter that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities). 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 to reopen 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). 1. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for sleep apnea is granted. In September 2014, the Veteran submitted a claim of service connection for a sleep condition. In a final January 2015 rating decision, the RO denied the claim, finding that the evidence did not show that the condition was incurred in or caused by service. The RO considered the Veteran’s service treatment records (STRs), which were negative for complaints, treatment, or diagnosis of a sleep condition. Additionally, the RO considered VA treatment records, which noted the Veteran’s reports of difficulty sleeping and an assessment of possible sleep apnea. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the January 2015 rating decision. The Veteran does not contend otherwise. Thus, the January 2015 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for sleep apnea. As noted above, 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. In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final January 2015 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the January 2015 rating decision includes medical literature indicating a significant association between psychiatric disorders and sleep apnea, as well as an association between PTSD and sleep-disordered breathing. See medical literature received October 2017 and November 2019. The additional evidence also includes multiple lay statements from the Veteran to the effect that his obstructive sleep apnea is related to his active duty service. See August 2018 Notice of Disagreement (NOD); November 2019 VA Form 9. Also received since the last final rating decision were VA treatment records noting a diagnosis of moderate obstructive sleep apnea. See October 2019 VAMC Pulmonary/Sleep Disorder Consult. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claim. Specifically, the medical literature noting a significant association between psychiatric disorders and sleep apnea and an association between PTSD and sleep-disordered breathing, as well as VA treatment records noting a diagnosis of moderate obstructive sleep apnea, were not before agency decision-makers at the time of the January 2015 rating decision. These records are therefore new, and directly address unestablished facts necessary to substantiate the claim of service connection for sleep apnea, particularly evidence of a causation. When presumed credible, they raise a reasonable possibility of substantiating the claim and trigger the VA’s duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See Shade, 24 Vet. App. at 117. Although this evidence is sufficient to reopen the claim, it is not sufficient to award the benefit sought. For that reason, additional development is necessary. 2. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a left hip disability is granted. In July 2015, the Veteran submitted a claim of service connection for a left hip disability, to include contusion with bursitis and hurting pelvis bone. In a final June 2016 rating decision, the RO denied the claim, finding that the evidence did not show that the Veteran’s disability had been clinically diagnosed. The RO considered the Veteran’s STRs which were negative for complaints, treatment, or diagnosis of a left hip contusion or hurting left pelvis bone. Additionally, the RO considered VA treatment records which did not show a current diagnosis or residuals of a left hip condition that was related to the Veteran’s active duty service. Although the Veteran submitted a new claim of entitlement to service connection for a left hip disability in February 2017, new and material evidence was not received within one year of the decision. Thus, the June 2016 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In a May 2017 rating decision, the RO continued the previous denial of service connection for a left hip disability. Thereafter, in October 2017, the Veteran filed a claim of service connection for a left hip disability secondary to his service-connected right hip disability. In a December 2017 rating decision, the RO reopened the Veteran’s claim for a left hip disability and denied it on the merits. The Veteran filed a notice of disagreement in August 2018 and a statement of the case was issued in October 2019. The Veteran subsequently perfected a timely appeal in November 2019. In this appeal, the Veteran seeks to reopen his claim of service connection for a left hip disability. As noted above, 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 notes that in the December 2017 rating decision currently on appeal, the RO reopened the claim and denied it on the merits. Despite the RO's finding, the Board is obligated by statute (38 U.S.C. §§ 5108, 7104(b)) to address whether new and material evidence has been submitted prior to addressing the merits of the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, despite the RO's finding, the Board must make a determination of whether new and material evidence has been presented to reopen the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final June 2016 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the June 2016 rating decision includes a lay statement from the Veteran indicating that his left hip disability was secondary to his service-connected right hip disability. See October 2017 Statement in Support of Claim. The additional evidence also includes a November 2017 VA examination noting a diagnosis of left hip strain. Also received since the last final rating decision was medical literature indicating that recent technology has enhanced diagnosis and management of osteoarthritis. See medical literature, received November 2019. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claim. Specifically, the November 2017 VA examination noting a diagnosis of left hip strain and the Veteran’s lay statement indicating that his left hip disability was secondary to his service-connected right hip disability were not before agency decision-makers at the time of the June 2016 rating decision. These records are therefore new, and directly address unestablished facts necessary to substantiate the claim of service connection for a left hip disability, particularly evidence of a current disability and causation. When presumed credible, they raise a reasonable possibility of substantiating the claim and trigger the VA’s duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See Shade, 24 Vet. App. at 117. Although this evidence is sufficient to reopen the claim, it is not sufficient to award the benefit sought. For that reason, additional development is necessary. Service Connection 3. Entitlement to service connection for osteoarthritis of the lumbar spine is denied. 4. Entitlement to service connection for osteoarthritis of the cervical spine is denied. 5. Entitlement to service connection for osteoarthritis of the right hip is denied. The Veteran seeks service connection for osteoarthritis of the lumbar spine, cervical spine, and right hip. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran 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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain specifically enumerated chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an initial matter, the Board notes that the Veteran is currently service-connected for lumbosacral strain, cervical strain with recurrent muscle spasm, and right hip contusion with bursitis. The Veteran was afforded VA examinations for his lumbar spine and cervical spine in August 2013. The examiner noted diagnoses of thoracolumbar strain and cervical strain with recurrent muscle spasm. X-rays performed in connection with the examinations indicated a normal lumbar spine and cervical spine, with straightening of cervical curvature. The Veteran was afforded a VA examination for his right hip in October 2013. The examiner noted a diagnosis of right hip contusion with bursitis. An X-ray performed in connection with the examination indicated a normal right hip. A May 2015 VA treatment record noted the Veteran’s complaints of hip and back pain, which began approximately 2 years prior during active duty. The Veteran reported constant pain which he described as “bone[s] rubbing each other.” The assessment was back and hip pain secondary to osteoarthritis. No diagnostic imaging was performed. See May 5, 2015 Internal Medicine Note. VA treatment records also noted osteoarthritis on the Veteran’s problem list. See 2015-2019 VAMC records. A May 2016 VA examination for the lumbar spine noted a diagnosis of lumbosacral strain. Imaging studies were not performed. A June 2016 VA examination for the Veteran’s right hip indicated a diagnosis of right hip contusion with bursitis. Imaging studies were not performed. A March 2017 VA examination for the cervical spine noted a diagnosis of cervical strain with recurrent muscle spasm. It was noted that imaging studies had been performed and arthritis was not documented. The Veteran was afforded VA examinations for his lumbar spine, cervical spine, and right hip in November 2017. The examiner noted the following diagnoses: lumbosacral strain, cervical strain, and right hip contusion with bursitis. X-rays performed in connection with the examinations indicated a normal lumbar spine, cervical spine, and right hip. It was also noted that there was a bone island in the proximal subtrochanteric region of the right hip. In support of his claim, the Veteran has submitted medical literature indicating that osteoarthritis was traditionally diagnosed with radiographs, which demonstrated joint space width and osteophytes. However, the literature suggests that recent technology, to include magnetic resonance imaging (MRI), ultrasound, and optical coherence tomography (OCT), has enhanced diagnosis and management of osteoarthritis through improvements in soft tissue depiction. See medical literature, received November 2019. After reviewing the evidence of record, the Board finds that service connection is not warranted for osteoarthritis of the lumbar spine, cervical spine, and right hip. The Board has weighed the probative evidence of record and finds that the evidence is against a finding that the Veteran has current diagnoses of osteoarthritis of the lumbar spine, cervical spine, or right hip. In that regard, the Board assigns high probative value to the August 2013, October 2013, and November 2017 VA examinations which found that the Veteran did not have a current diagnosis of osteoarthritis of the lumbar spine, cervical spine, or right hip. The examiners rendered their opinions after eliciting a detailed history from the Veteran, conducting a clinical examination, and reviewing X-ray findings which indicated normal lumbar spine, cervical spine, and right hip. The Board assigns less probative value to the VA treatment records, which noted an assessment of back and hip pain secondary to osteoarthritis and included osteoarthritis on the Veteran’s problem list, as the treatment records contain no indication that any diagnostic imaging was performed. Additionally, the Board assigns less probative weight to the medical literature submitted by the Veteran, as there is no competent evidence that in the Veteran’s case an MRI, ultrasound, or OCT would show a disability such as osteoarthritis that X-rays performed on separate occasions over a 4 year period would not have shown. As a current disability has not been shown, it is unnecessary for the Board to address the second and third elements in a service connection claim. The Board notes that regardless of how the Veteran classifies his disabilities, to the extent that he seeks increased disability ratings for his lumbar spine, cervical spine, and right hip, he is advised to file claims for increased ratings. Based on the evidence of record at this time, the Board must conclude that the preponderance of the evidence is against the claims. As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his current sleep apnea is secondary to his service-connected posttraumatic stress disorder (PTSD). VA treatment records obtained in connection with the Veteran’s claim noted an October 2019 diagnosis of moderate obstructive sleep apnea. See October 2019 VAMC Pulmonary/Sleep Disorder Consult. In support of his claim, the Veteran has submitted medical literature indicating that there is a significant association between psychiatric disorders and sleep apnea, as well as an association between PTSD and sleep-disordered breathing, to include obstructive sleep apnea. See medical literature received October 2017 and November 2019. The VA has a duty to assist the Veteran in obtaining a medical examination or opinion in certain circumstances. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A VA examination must be obtained in a disability compensation claim if there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; establishment of an in-service event, injury, or disease; an indication that the current disability may be associated with an in-service event or another service-connected disability; and insufficient competent medical evidence to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81-6 (2006). In this case, the Veteran has not been afforded a VA examination in connection with his claim. Because the Board cannot make a fully informed decision on the issue of sleep apnea without an examination, the Board concludes that a VA examination is warranted. 2. Entitlement to service connection for a left hip disability is remanded. The Veteran contends that his left hip disability is secondary to his service-connected right hip disability. See October 2017 Statement in Support of Claim. The Veteran was most recently afforded a VA examination in November 2017. The examiner noted a diagnosis of left hip strain. The examiner noted the Veteran’s reports of bilateral hip pain since active duty service, which had worsened since that time. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran’s left hip disability was less likely as not proximately due to or the result of the Veteran’s service-connected right hip disability. The examiner opined in pertinent part, Veteran’s current left hip symptoms are unlikely related to the right hip. Review of available medical evidence in the c-file does not support the claim of left hip problems caused by the right hip. Previous examinations 6/23/2016 showed no diagnosis for a left hip problem. There w[ere] no reported chronic gait issues that can account for the current left hip symptoms. The most recent mention of left hip pain was in 2017 in the VA treatment records, however, there is no indication this was caused by or due to right hip issues or gait problems. Unlike in lower weight bearing joints, there would be no contralateral compensatory weight involvement in the contralateral hip joint function from the affected hip joint. The transfer of weight occurs when regards to trunk and leg forces involved in the ipsilateral hip joint. The Board finds that the examination is inadequate with regard to the Veteran’s left hip, as the examiner addressed only a causal relationship and did not address the question of aggravation. The U.S. Court of Veterans Appeals (Court) has held that because there are two prongs to a secondary service connection claim -- causation and aggravation in order to be adequate, a medical opinion must provide explanations for both prongs. Atencio v. O’Rourke, 30 Vet. App. 74 (2018); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, an addendum medical opinion is warranted. Accordingly, the matters are REMANDED for the following action: 1. Afford the Veteran a VA medical examination to determine the nature and etiology of his current sleep apnea. Access to the Veteran's electronic VA claims file should be made available to the examiner for review in connection with the examination. After review of the record and examination of the Veteran, the examiner should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not that the Veteran’s current sleep apnea had its inception during his period of active duty or is otherwise causally related to an in-service disease or injury? (b) If not, is it at least as likely as not that the Veteran’s current sleep apnea is caused by his service-connected PTSD? (c) If not, is it at least as likely as not that the Veteran’s current sleep apnea is aggravated by his service-connected PTSD? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. 2. Obtain an addendum medical opinion to determine the nature and etiology of the Veteran’s current left hip disability. Access to the Veteran's electronic VA claims file should be made available to the examiner for review in connection with the opinion. After reviewing the record, the examiner should provide an opinion, with supporting rationale as to the following: (a) Is it at least as likely as not that the Veteran’s current left hip disability is caused by his service-connected right hip disability? (Continued on the next page)   (b) If not, is it at least as likely as not that the Veteran’s current left hip disability is aggravated by his service-connected right hip disability? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should reference any relevant evidence of record. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.