Citation Nr: 20042048 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 15-29 022 DATE: June 19, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder; to that extent, the appeal is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for headaches; to that extent, the appeal is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for degenerative joint disease of the right hip is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for degenerative disc disease of the lumbar spine as secondary to service-connected bilateral knee disabilities is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to service-connected bilateral knee disabilities is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to service-connected bilateral knee disabilities is remanded. Entitlement to service connection for shin splints of the left lower extremity is remanded. Entitlement to service connection for shin splints of the right lower extremity is remanded. Entitlement to service connection for bilateral foot disability, claimed as pes planus is remanded. FINDINGS OF FACT 1. The Veteran’s service connection claim for a back disorder was previously denied in a February 2012 Board decision. The Veteran did not appeal this decision, nor has he asserted clear and unmistakable error in this decision. 2. The evidence submitted since the February 2012 Board decision is not cumulative or redundant and raises a reasonable possibility of substantiating the underlying claim for service connection for a back disorder. 3. A June 2004 rating decision denied service connection for headaches and the Veteran did not perfect an appeal. 4. The evidence submitted since the RO’s June 2004 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection. CONCLUSIONS OF LAW 1. The February 2012 Board decision is final regarding the issue of service connection for a back disorder. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has been received since the Board’s February 2012 decision sufficient to reopen the Veteran’s claim of service connection for a back disorder. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. 3. The June 2004 rating decision is final regarding the issue of service connection for headaches. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. New and material evidence has been received to reopen a claim of entitlement to service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1973 to July 1976 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2013, May 2013, and February 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran testified during a June 2019 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript is included in the electronic claims file. This hearing only addressed issues from one SOC; as the time of the hearing, it was clarified that the hearing request was only as to these issues. The representative subsequently provided a brief as to all issues. New and Material Evidence In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. Service connection for a back disorder was denied in a February 2012 Board decision. The Board denied the Veteran’s claim on the basis of VA examiners’ findings that the Veteran’s service treatment records did not support a diagnosis of a chronic or permanent low back disorder while in service. The Board finds that the Veteran has subsequent provided new and material evidence of a link between a currently diagnosed disability and his now service-connected knees. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for headaches. Service connection for headaches was denied in a June 2004 rating decision on the basis that the Veteran did not have a chronic headache pathology in-service and had no current headache condition. The Veteran filed a notice of disagreement but did not file a VA Form 9 substantive appeal following the July 2005 statement of the case. The June 2004 rating decision is therefore final. Evidence received since the June 2004 rating decision includes VA treatment records showing a diagnosed migraine disability, and a June 2019 statement from the Veteran’s treating physician indicating that his migraines may be related to stress from his service-connected PTSD. This evidence has not been previously considered and relates to an unestablished fact necessary to substantiate the claim; whether the Veteran has a diagnosed headache condition. Based on the foregoing, the Board finds that new and material evidence has been received to reopen the claim of service connection for headaches. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that service connection is warranted for sleep apnea. At the June 2019 hearing, the Veteran testified that he first began experiencing sleep apnea symptoms in basic training, when he would wake up sweating and choking. He stated that he did not seek medical treatment for sleep apnea in-service because “nobody knew what it was.” June 2019 hearing transcript at 4. He did not seek medical treatment until 2005, when he was diagnosed with sleep apnea. A medical opinion was provided in July 2015 but the Veteran was not examined in connection with this opinion. The VA clinician opined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of his service-connected PTSD. The clinician did not provide an opinion as to whether the Veteran’s sleep apnea was directly related to service. On this basis, additional opinion is needed. 2. Entitlement to service connection for degenerative joint disease of the right hip is remanded. The Board cannot make a fully informed decision on the issue of service connection for a right hip disorder because no VA examiner has opined whether it is related to service. The Veteran contends that he injured his right hip in the same in-service incident as his knee disabilities for which he is service-connected. At the June 2019 Board hearing, the Veteran testified that he fell 18 feet off of a dry-rotted pole and hurt his hip. He stated that he reported hip pain at his separation physical but was brushed off. The Board notes that on his May 1976 Report of Medical History at separation, the Veteran checked “don’t know” and put an asterisk in the yes column for swollen or painful joints; however, there is no further explanation on the Report that indicates whether this was in reference to his right hip. In light of the diagnosed right hip degenerative joint disease and the Veteran’s testimony as to an in-service injury, the Board finds that a VA examination is necessary. McLendon, supra. 3. Entitlement to service connection for headaches is remanded. The Veteran contends that his headaches are due to an in-service sport related injury. He testified at the June 2019 Board hearing that he first began experiencing headaches following an in-service football injury where he collided with the quarterback and was taken to the emergency room for stitches. Service treatment records confirm that in October 1975, the Veteran suffered a right eye laceration when he “bumped heads with another person while playing football.” The Veteran further testified that he did not seek medical treatment until February 1977 after he separated from service. VA treatment records contain that Veteran’s reports of consistent headaches following the in-service injury. He was afforded a VA examination of his headaches in May 2013, which noted that the reported in-service head injury was not documented in the service treatment records and that the Veteran’s reported headaches in service were nonmigranous and associated with upper respiratory infections. As noted above, the service treatment records clearly indicate that the Veteran “bumped heads” with someone while playing football and that had to get stitches for a laceration above his right eye as a result of that injury. The Board finds that the Veteran is competent to speak to manifestations or symptoms of migraines or headaches. Thus, the Veteran should be afforded another VA examination to determine the nature and etiology of his headaches. Alternatively, the Veteran contends that his headaches are secondary to his service-connected PTSD. In a June 2019 statement, the Veteran’s VA physician Dr. V.R. opined that his migraine headaches “are more likely than not could be affected due to stress secondary to PTSD.” July 3, 2019 Medical Treatment Records – Government Facility at 1. Unfortunately, Dr. V.R. did not provide any further rationale in support of her opinion. As Dr. V.R.’s June 2019 opinion raised the issue of secondary service connection, a VA medical opinion should be obtained as to whether the Veteran’s headaches were caused by or aggravated by his service-connected PTSD. 4. Entitlement to service connection for degenerative disc disease of the lumbar spine as secondary to service-connected bilateral knee disabilities is remanded. 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to service-connected bilateral knee disabilities is remanded. 6. Entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to service-connected bilateral knee disabilities is remanded. Once the VA undertakes providing a veteran with an examination, it has a duty to ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In secondary service connection claims, a medical opinion is inadequate if it does not address both causation and aggravation of the nonservice-connected condition. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). In December 2016, the AOJ obtained VA medical opinions as to the nature and etiology of the Veteran’s back and bilateral lower extremity peripheral neuropathy disabilities. However, these opinions do not provide adequate opinions regarding whether the Veteran’s back and bilateral peripheral neuropathy disabilities are aggravated by his service-connected bilateral knee disabilities. Although the VA examiner addressed secondary service connection from a causation basis, he did not provide an opinion regarding aggravation between the Veteran’s back disability and his service-connected knee disabilities or between his peripheral neuropathy of the bilateral lower extremities and his service-connected bilateral knee disabilities. 7. Entitlement to service connection for shin splints of the left lower extremity is remanded. 8. Entitlement to service connection for shin splints of the right lower extremity is remanded. The Veteran contends that his diagnosed bilateral shin splints are secondary to his service-connected knee disabilities. A July 2018 VA ankle examination found that the Veteran had bilateral shin splints that did not impact the range of motion of the knees or ankles. To date, the Veteran has not been afforded a VA examination to determine whether his shin splints are caused or aggravated by his service-connected bilateral knee disabilities. A remand is necessary to schedule the Veteran for examination. McLendon, supra. 9. Entitlement to service connection for bilateral foot disability, claimed as pes planus is remanded. The Veteran contends that service connection is warranted for a bilateral foot disability, initially claimed as pes planus. He has been diagnosed with pes cavus and metatarsalgia and has complained of foot pain since his military service. See generally VA treatment records. The Board cannot make a fully-informed decision on the issue of a bilateral foot disability because no VA examiner has opined whether the diagnosed foot disabilities are related to service. A remand is necessary to schedule the Veteran for examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s sleep apnea. The claims file must be made available to and reviewed in its entirety by the examiner. Any indicated tests and studies must be performed. After record review and a thorough examination and interview of the Veteran, the VA examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea was incurred in, or is otherwise related to, his active duty service. A thorough rationale for all opinions expressed must be provided. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran’s statements, and explain the rationale for the opinion given. 3. Upon completion of directive #1, schedule the Veteran for a VA examination to determine the nature and etiology of his right hip disability. All indicated tests and studies should be conducted. The entire claims file, including this remand, must be provided to the examiner for review. Following a review of the relevant evidence and a thorough clinical evaluation, the examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s right hip disability was incurred in, or is otherwise related to, his active duty service. A thorough rationale for all opinions expressed must be provided. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran’s statements, and explain the rationale for the opinion given. 4. After completing directive #1, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran’s headaches. All necessary diagnostic testing and evaluation should be performed, and all findings set forth in detail. Following a review of the claims file, the examiner is to provide an opinion as to the following: a. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches manifested in or are otherwise etiologically related to service, to include the October 1975 football incident?; b. Is it at least as likely as not that the Veteran’s headaches were caused by his service-connected PTSD?; c. Is it at least as likely as not that the Veteran’s headaches were aggravated beyond their natural progression by his service-connected PTSD? In addressing the above questions, the examiner should address and discuss the submitted June 2019 opinion from Dr. V.R. and the Veteran’s reports in the VA treatment records of persistent headaches since the in-service head injury. A thorough rationale for all opinions expressed must be provided. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran’s statements, and explain the rationale for the opinion given. 5. Return the claims file, to include a copy of this remand, to the examiner who conducted the December 2016 VA examinations, if available, for addendum opinions regarding the nature and etiology of the Veteran’s back and peripheral neuropathy disabilities. If the December 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the examiner is to provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s degenerative disc disease of the lumbar spine was caused or aggravated (worsened in severity beyond its natural progression) by his service-connected bilateral knee disabilities; b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy of the bilateral lower extremities was caused or aggravated (worsened in severity beyond its natural progression) by his service-connected bilateral knee disabilities. A complete rationale should be provided for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran’s bilateral shin splints. The claims file must be made available to and reviewed in its entirety by the examiner. Any indicated tests and studies must be performed. After record review and a thorough examination and interview of the Veteran, the VA examiner should opine as to the following: a. Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed shin splints are caused by the Veteran’s service-connected bilateral knee disabilities?; b. Is it at least as likely as not that any diagnosed shin splints are aggravated beyond their natural progression by the Veteran’s service-connected bilateral knee disabilities? A thorough rationale for all opinions expressed must be provided. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran’s statements, and explain the rationale for the opinion given. 7. After completion of directive #1, the AOJ should arrange for a VA evaluation of the Veteran to ascertain the etiology of any diagnosed bilateral foot conditions. The claims folder, to include a copy of this remand, must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. Based upon a review of the relevant evidence of record and history provided by the Veteran and a thorough clinical evaluation, the VA examiner should: a. Identify all diagnosed foot disabilities. b. For each diagnosed foot disability, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) incurred in, caused by, or is otherwise related to the Veteran’s service. Detailed reasons for all opinions should be provided. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Thompson, 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.