Citation Nr: 20032087 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 16-60 888 DATE: May 7, 2020 ORDER The appeal to reopen a claim of entitlement to service connection for migraine and tension headaches is denied. The appeal to reopen a claim of entitlement to service connection for obstructive sleep apnea is denied. The appeal to reopen a claim of entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. A November 2014 rating decision denied entitlement to service connection for migraine and tension headaches; no appeal was taken from the November 2014 rating decision, and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the November 2014 does not relate to an unestablished fact necessary to substantiate the claim for service connection for migraine and tension headaches. 3. A November 2014 rating decision denied entitlement to service connection for obstructive sleep apnea; no appeal was taken from the November 2014 rating decision, and new and material evidence was not received within the one-year appeal period. 4. Evidence received since the November 2014 does not relate to an unestablished fact necessary to substantiate the claim for service connection for obstructive sleep apnea. 5. A November 2014 rating decision denied entitlement to service connection for a low back disability; no appeal was taken from the November 2014 rating decision, and new and material evidence was not received within the one-year appeal period. 6. Evidence received since the November 2014 relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability. CONCLUSIONS OF LAW 1. The November 2014 rating decision that denied the claim of entitlement to service connection for a migraine and tension headaches is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence having not been received, the criteria to reopen the previously denied claim of entitlement to service connection for migraine and tension headaches, have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 3. The November 2014 rating decision that denied the claim of entitlement to service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence having not been received, the criteria to reopen the previously denied claim for entitlement to service connection for obstructive sleep apnea, have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. 5. The November 2014 rating decision that denied the claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. New and material evidence having been received, the criteria to reopen the previously denied claim for entitlement to service connection for a low back disability, have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to December 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the September 2015 rating decision included a denial of the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). In October 2016, the RO issued a rating decision granting the Veteran service connection for PTSD. As this decision represents a full grant of the benefit sought, the issue is no longer on appeal. The Veteran presented testimony at a Board video conference hearing before the undersigned Veterans Law Judge in March 2020. A transcript of the hearing is of record. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Decisions of the Board are final on the date it is stamped. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Kightly v. Brown, 6 Vet. App. 200, 204 (1994). The Board is under a statutory obligation to conduct a de novo review of a new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7404(b). New evidence is existing evidence not previously received by agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Even where the RO determines that new and material evidence has not been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson, 265 F.3d at 1370. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). By way of background, in a November 2014 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for a low back disability, entitlement to service connection for migraine and tension headaches, and entitlement to service connection for sleep apnea. The RO based its denials on finding that there was no link between the Veteran’s current disabilities and his military service. The Veteran did not file a Notice of Disagreement (NOD); however, the Veteran filed a claim to reopen in July 2015. See July 2015 VA Form 21-526. In a September 2015 rating decision, the RO reopened the Veteran’s claims and denied them on the merits. However, after review of the record, the Board finds that no new and material evidence was received within one year of issuance of the November 2014 rating decision. See 38 C.F.R. § 3.156(b); see Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Additionally, the July 2015 VA Form 21-526 cannot be construed as a NOD as it was not filed on the proper VA Form 21-0958. See 38 C.F.R. § 20.201. Therefore, the November 2014 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. With regard to the December 2015 NOD, the Board concludes that it pertains to the September 2015 rating decision that reopened the Veteran’s claims and denied service connection on the merits. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for migraine and tension headaches. In November 2014, the RO denied the Veteran’s claim for entitlement to service connection for migraines and tension headaches because the evidence of record did not establish a nexus between his current condition and active service. See November 2014 rating decision. In September 2015, the RO reopened the claim for entitlement to service connection for migraines and tension headaches and continued the November 2014 previous denial of the Veteran’s claim. However, the Board finds that no new and material evidence was associated with the claims file since the November 2014 rating decision and notification. The new evidence associated with the claims file since the November 2014 rating decision includes additional lay statements, including at a March 2020 hearing before the Board; additional VA treatment records received in October 2016, October 2018, November 2018, and December 2018; and additional private medical records. The Board notes that the November 2014 rating decision denied service connection based on a November 2013 VA examination. The November 2013 VA examiner opined that it was less likely than not the Veteran’s current headaches were related to complaints of constant headaches noted in his service treatment records. See November 2013 VA examination. The additional VA treatment records associated with the claims file are new as they were not previously associated with the claims file; however, they are not material as they only continue to confirm the Veteran’s complaints for headaches. Additionally, the VA treatment records do not demonstrate a nexus between the Veteran’s headaches and his military service. Rather, they demonstrate the Veteran’s headaches are associated with nonservice-connected neck pain. See December 2014 VA treatment record. In an April 2015 statement, the Veteran asserts that his migraines and tension headaches “should have been considered as an aggravated condition as my military records and current medical records show that I have suffered from this condition and still suffer from this condition.” See April 2015 Statement in Support of Claim. The Veteran also asserted that his migraine and tension headaches began in service at a March 2020 hearing. See March 2020 Hearing Transcript. The Veteran’s lay statements are not material as they are cumulative and redundant and do not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for migraine and tension headaches. See 38 C.F.R. § 3.156(a). Specifically, the November 2013 VA examiner considered the Veteran’s report of headaches in service as it is noted in his service treatment records. See November 2013 VA examination. The Veteran also testified that he sought treatment from a private neurosurgeon. See March 2020 Hearing Transcript. The Veteran submitted an August 2011 private neurosurgeon consultation report in March 2020, and September 2018. However, the August 2011 private neurosurgeon consultation report was of record at the time of the November 2014 rating decision as it was received by the RO in July 2014. Therefore, the August 2011 private neurosurgeon consultation report is not new evidence. See 38 C.F.R. § 3.156(a). The Board notes that other evidence was associated with the claims file that is not related to the Veteran’s claim for service connection for migraine and tension headaches as they relate to other issues adjudicated by the RO. Thus, the evidence associated with the claims file following the November 2014 rating decision do not raise a reasonable possibility of substantiating the claim for entitlement to service connection for migraine and tension headaches. The prior denial is final, and the claim for service connection for migraine and tension headaches is not reopened. See U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for obstructive sleep apnea. In November 2014, the RO denied the Veteran’s claim for entitlement to service connection for obstructive sleep apnea because the evidence of record did not establish a nexus between his current condition and active service. See November 2014 rating decision. In September 2015, the RO reopened the claim for entitlement to service connection for obstructive sleep apnea and continued the November 2014 previous denial of the Veteran’s claim. However, the Board finds that no new and material evidence was associated with the claims file since the November 2014 rating decision and notification. The new evidence associated with the claims file since the November 2014 rating decision includes additional lay statements, including at a March 2020 hearing before the Board; additional VA treatment records received in October 2016, October 2018, November 2018, and December 2018; and additional private medical records. The Board notes the Veteran was granted service connection for PTSD in an October 2016 rating decision. The Veteran testified that he was told by a psychiatrist, Dr. K., that there was a relationship between his PTSD and sleep apnea. See March 2020 Hearing Transcript. The Veteran also submitted a February 2020 lay statement from his spouse indicating the Veteran had breathing problems while sleeping since 1979 and uses a CPAP machine. Although the Veteran’s VA treatment records and lay statements are considered to be new evidence, they cannot serve to reopen the Veteran’s claim because they are not “material” in that they do not offer any evidence suggesting a nexus between the Veteran’s obstructive sleep apnea due to his service. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993). Additionally, in a November 2013 VA treatment note, Dr. K. notes he offered the Veteran a trial of medication that he explained had been used with some Vietnam veterans with PTSD – associated sleep hyperarousal, and that he has had some patients whom the medication did not worsen any aspect of obstructive sleep apnea. See November 2013 VA treatment records. This record was previously before the RO. The Veteran’s VA treatment records and lay statements since the November 2014 rating decision are redundant and cumulative as they do not relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for sleep apnea. See 38 C.F.R. § 3.156(a). Rather, the additional VA treatment records since November 2014 continue to demonstrate the Veteran’s treatment and complaints for obstructive sleep apnea. With respect to his new theory that he has obstructive sleep apnea secondary to his service-connected PTSD, the Board notes that a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed. Cir. 2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be bases of new claim). Here, there is no competent evidence of record to support his claim based on a new theory of service connection for sleep apnea secondary to service-connected PTSD. Id. The Board notes that other evidence was associated with the claims file that is not related to the Veteran’s claim for service connection for obstructive sleep apnea as they relate to other issues adjudicated by the RO. Thus, the evidence associated with the claims file following the November 2014 rating decision do not raise a reasonable possibility of substantiating the claim for entitlement to service connection for obstructive sleep apnea. The prior denial is final, and the claim for service connection for obstructive sleep apnea is not reopened. See U.S.C. § 5108; 38 C.F.R. § 3.156. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disability. In November 2014, the RO denied the Veteran’s claim for entitlement to service connection for a low back disability because the evidence of record did not establish a nexus between his current condition and active service. See November 2014 rating decision. In September 2015, the RO reopened the claim for entitlement to service connection for a low back disability and continued the November 2014 previous denial of the Veteran’s claim. The Board notes that the RO denied the Veteran’s claim based on a November 2013 VA examination that found the it was less likely than not that the Veteran’s low back disability was incurred in or caused by an in-service acute sprain and muscle spasm noted in the Veteran’s service treatment records. Since the November 2014 rating decision, additional VA treatment records have been associated with the claims file. Specifically, in a June 2018 VA treatment note, the examiner notes, under “impression,” a history of the Veteran’s low back disability that includes an injury in the Navy in 1972. Previous VA treatment notes did not include a history of the Veteran’s low back disability that included the Veteran’s injury while in the Navy; rather, they demonstrated the Veteran’s reports and noted injury in service treatment records. As such, the Board finds the additional VA treatment records to be new evidence. This evidence is material as it relates to an unestablished fact, evidence of a nexus between the Veteran’s current low back disability and a back injury that occurred while on active duty. See 38 C.F.R. § 3.156(a). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim to entitlement to service connection for a low back disability. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. Having reopened the Veteran’s claim of entitlement to service connection for a low back disability, the Board finds that the claim must be remanded for additional development before a decision on the merits can be rendered. See Bernard v. Brown, 4 Vet. App. 384 (1993). In a June 2018 VA treatment note, the examiner notes, under “impression,” a history of the Veteran’s low back disability that includes an injury in the Navy in 1972. In light of the foregoing new VA treatment records, the Board finds the claim must be remanded for an addendum opinion with an adequate rationale regarding the nature and etiology of the Veteran’s low back disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence…is essential for a proper appellate decision.”). At the Veteran’s March 2020 hearing, the Veteran testified that he received Social Security (SSA) disability benefits when he turned 62 years of age after retiring. See March 2020 Hearing Transcript. He testified that he retired due to neck pain. Id. However, a May 2012 VA treatment record shows the Veteran reported he retired due to back problems. There is a reasonable possibility that any existing SSA records may be relevant to the Veteran’s low back disability. VA has not made any effort to date to obtain the Veteran’s SSA records. On remand, an attempt should be made to obtain any SSA disability benefits records. See 38 C.F.R. § 3.159(c)(2); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA’s duty to obtain social security only applies to records relevant to a Veteran’s present claim). The Board, the Veteran also testified that he received treatment for his low back disability through his Kaiser insurance after service until 1996; however, he stated that he did not mention injuring his back in service at the time he was treated for his back. Nevertheless, the Board finds that these private records may be relevant to the nature and etiology of the Veteran’s claim of entitlement to service connection for a low back disability. Additionally, as noted, new evidence has been associated with the Veteran’s claims file following an October 2016 Statement of the Case, that includes new VA treatment records. If evidence, pertinent to any issue on appeal, is received after a veteran’s claim has been transferred to the Board for appellate review, a veteran can waive consideration of the evidence by the AOJ and permit the Board to consider the evidence in the first instance. If a veteran fails to waive AOJ consideration or specifically declines to waive such consideration, then remand is necessary for the AOJ to consider the evidence in the first instance. See 38 C.F.R. §§ 19.37(b), 20. 1305(c). Despite the Veteran’s representative indicating a waiver would be submitted at the Veteran’s March 2020 hearing, a waiver of AOJ consideration of additional VA treatment records associated with the claims file has not been received. As this evidence has not yet been reviewed by the AOJ and there is no waiver of AOJ consideration, remand is required. On remand, the AOJ should review this new evidence in the first instance and issue a Supplemental Statement of the Case (SSOC). See 38 C.F.R. §§ 19.31, 19.37(b). Moreover, the Veteran testified he is currently receiving VA treatment for his low back disability. See March 2020 Hearing Transcript. Accordingly, remand is appropriate to obtain outstanding VA treatment records. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records from November 2018 to the present. 2. After obtaining any necessary authorization from the Veteran, obtain and associate with the claims file all outstanding private treatment records for his low back disability through his Kaiser insurance after service until 1996. Document all requests for information as well as all responses in the claims file. 3. Obtain and associate with the claims file all records pertaining to the Veteran concerning a claim for disability benefits from the SSA, to include all evidence and copies of any disability information. Document all requests for information as well as all responses in the claims file. 4. After completion of the above, forward the record and a copy of this Remand to the examiner who provided the November 2013 medical opinion, or, if that examiner is unavailable, to another suitable qualified examiner, for completion of an addendum opinion. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a low back disability that is causally related to or aggravated by the Veteran’s service, to include a back injury noted in his service treatment records. The examiner must address the Veteran’s VA treatment records, including the June 2018 VA treatment record. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. 5. After completion of the above, readjudicate the issue on appeal of entitlement to service connection for a low back disability. If the benefit sought is not granted, then the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.