Citation Nr: 20043545 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 20-24 881 DATE: June 29, 2020 ORDER New and material evidence having been received, the claim to reopen a previously denied claim of service connection for degenerative disc disease (low back strain), and to that extent only, is granted. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure, is denied. REMANDED Entitlement to service connection for residuals of a head injury, to include headaches, is remanded. Entitlement to service connection for degenerative disc disease (low back strain) is remanded. FINDINGS OF FACT 1. Service connection for a back disability was denied in a July 2005 rating decision. Evidence added to the record since the July 2005 decision is new or relevant that 2. The preponderance of the evidence of record is against finding that the Veteran has had a clinical diagnosis for sleep apnea at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for whether new and relevant evidence has been received to reopen the claim for entitlement to service connection for degenerative disc disease (low back strain) have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a)(1). 2. The criteria for entitlement to service connection for sleep apnea, to include as due to asbestos exposure, have not been met. 38 U.S.C38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from September 1956 to September 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the appeal is Advanced on the Docket (AOD) as a result of the Veteran’s age. 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). New and Material Claims Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). 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, consideration is not limited to whether the newly received evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for a low back strain was denied in a July 2005. The RO noted that although there is a record of treatment in service for low back strain in 1959, a physical examination dated July 1960 indicated low back strained muscle with full recover. Based upon these findings, the RO denied service connection because the Veteran’s condition was not shown to be chronic and there is no evidence that the Veteran had a current disability existed. The Veteran did not appeal this decision nor was new and material evidence received within one year, accordingly, the determination was final. 38 C.F.R. §§ 3.156 (b), 20.1103 (2017). The Veteran filed a new claim of service connection for arthritis of the back in July 2018. The RO denied the claim of service connection for lack of new and material evidence. The Veteran submitted a request to reconsider the previously denied claim in January 2019. The claim was recharacterized as service connection for degenerative disc disease, low back strain (claimed as arthritis). The RO reopened the Veteran’s claim but denied the claim on its merits. The evidence received in pertinent part since the July 2005 rating decision includes a private medical treatment record showing a current diagnosis of lumbar spine degenerative disc disease. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims. Therefore, this evidence is new and material, and reopening of the claim service connection for a low back disability is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2015). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 7104 (a); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board must consider all lay (non-expert) and medical evidence in evaluating a claim. See 38 U.S.C. § 1154 (a). In general, a lay witness is competent to provide testimony or statements relating to observed symptoms or facts within the ambit of the witness’s personal knowledge. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); However, a layperson is generally not competent to determine issues requiring specialized knowledge or training. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (West 2014); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001); Gilbert, 1 Vet. App. at 49. 1. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure. As noted above, the first prong of a service connection claim is establishing the existence of a diagnosis during the period on appeal. The Veteran’s service treatment records, including his entrance and separation examinations, are silent for complaints of, symptoms or treatment of sleep apnea. The Veteran is competent to report on observable symptomatology of his sleep apnea. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Therefore, the Board finds the Veteran’s testimony regarding his symptoms credible. While the Veteran is competent to report having experienced symptoms of sleep apnea since service and consistently since service, he is not competent to provide a diagnosis in this case as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of specialized medical education and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377. Moreover, the Veteran’s records do not include a sleep study or any other post-service treatment records for sleep apnea. In other words, the Veteran does not have a clinical diagnosis of sleep apnea. A remand for a VA examination is not warranted. Additional development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 83-86. In the instant case, the Veteran does not have a clinically diagnosed disability for sleep apnea. Based on the foregoing, the Board cannot grant service connection for sleep apnea. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for sleep apnea is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a head injury, to include headaches, is remanded. The Veteran’s STRs reflect that he was treated in service for a head injury. The Veteran’s post service medical treatment record, dated February 1996, shows that he had some headaches over the last few days and described them as being mild, dull and improving with Tylenol but then returning. Medical records dated May 1996 reflect that the Veteran complained of headaches and that two weeks prior he experienced headaches with acute viral meningitis. The assessment provided was post meningitis, post spinal tap headaches. Medical records show that the Veteran was diagnosed with coccidioidomycosis meningitis in May 1996. A May 1998 discharge summery noted that the Veteran complained of chronic moderate to severe headaches. A September 1998 Kaiser Permanente medical record reported that the Veteran had chronic coccidioidomycosis meningitis with frequent headaches and history of arachnoiditis. In a May 1998 neurology consultation medical note, the Veteran denied having any headaches. In the same medical note, the examiner opined that the Veteran’s pain syndrome from his back probably relates to the arachnoiditis (inflammation of the membranes surrounding the spinal cord nerves) and suspected that the arachnoiditis probably relates to the Veteran’s coccidiomycosis (infection, usually of the lungs, caused by the fungus Coccidioides immitis). Medical reports from March 1999 show that the Veteran presented to the hospital with increasing headache and diffuse myalgia and arthralgia. The Veteran reported that he had 24 hours of markedly increased headaches after mildly increased headache for one week prior. The examiner noted that the Veteran was in a state of good health until three years ago when he presented with Coccidioides meningitis. The Veteran’s headaches were described as chronic. As the Veteran had a head injury in service and has a current diagnosis of chronic headaches that could be associated with his in-service injury or with post-service meningitis, a VA examination with medical opinion is warranted to determine the etiology of the Veteran’s headaches. 2. Entitlement to service connection for a degenerative joint disease (low back strain) The Veteran is diagnosed with osteopenia and degenerative joint disease of the lumbar spine. The Veteran contends that he developed back pain in 1959 while stationed in Sub Base Pearl Harbor, Hawaii. The Veteran said that he worked on a torpedo boat and was taken to sick bay on the base where he was held for three years. A few days after he was released, his back pain returned, and he was admitted to Triplor Army Hospital. He was told that he had strained his back. The Board finds the Veteran credible as to the reporting of the events in-service, particularly because these events are corroborated by medical evidence. The Veteran’s STRs contain a letter from the Department of the Navy, Judge Advocate General, which states that the Veteran was injured in the line of duty on March 2, 1959. A medical note, dated March 1959, states that he was bending over and when he arose, his back seized and caused low back pain. The examiner noted that the Veteran was not responding to treatment of bed rest and medication and had to be transferred to the hospital. The Veteran was diagnosed with lumbosacral strain and admitted to Tripler Hospital on March 6, 1959. According the medical note at Tripler Hospital, the Veteran was discharged to duty on March 12, 1959 and was noted to have “sufficiently recovered.” The Veteran’s separation examination, dated September 1964, does not report a back condition. In May 2017, the Veteran told his doctor that his back had been hurting and the Veteran was sent for an x-ray. A May 2017 diagnostic radiology report indicates that the Veteran’s disability is the result of an old compression fracture of L-1 with no subluxation. The Veteran was afforded a VA examination in March 2019. The examiner noted the following diagnoses: degenerative arthritis of the spine and arachnoiditis. The Veteran reported that he has pain and trouble walking. The examiner opined that the Veteran’s disability was less likely than not incurred in or caused by the claimed in-service back injury because his 1959 back injury has no continuity, and he has a negative separation exam in September 1964. The examiner referenced a May 1998 neurology consult which diagnosed the Veteran with arachnoidities based on an April 1998 MRI. The neurologist stated his impression as: “Coccidyoidomycosis, diagnosed in June of 1995, and on ongoing fluconazole, with continued abnormal spinal tap done in 1997. The patient now has a pain syndrome from his back through his legs, and an MRI was consistent with arachnoiditis. I suspect that the pain syndrome probably relates to the arachnoiditis and suspect that the arachnoiditis probably relates to the coccidyoidal mycosis.” Therefore, the examiner concluded that the Veteran’s lower back disability is due to the arachnoiditis diagnosed in 1998, aging and morbid obesity. The Board finds that the opinion of the March 2019 VA examiner inadequate and therefore does not afford it any weight. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The medical opinion is inadequate because it does not take into consideration the May 2017 diagnostic radiology report which indicates that the Veteran’s disability is the result of an old compression fracture of L-1 with no subluxation, as opposed to arachnoiditis. The examiner also does not explain how the Veteran’s diagnosis of coccidyoidal mycosis relates to his diagnosis of arachnoiditis, which the examiner determined to have caused the Veteran’s back disability. For this reason, a remand is warranted in order to obtain a new medical opinion that addresses all the contentions relating to the etiology of the Veteran’s back disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headaches. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his head injury. In answering this question, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran’s VA claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any degenerative disc disease (low back strain) disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service lumbosacral strain. In providing this medical opinion, the examiner should address the conflicting medical opinions of the March 2019 VA examiner and the May 2017 diagnostic radiology report as to the etiology of the Veteran’s disability. In answering this question, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran’s VA claims file. 3. After completing all actions set forth, undertake any further action needed as a consequence of that development. Then, if the full benefit sought has not been granted, issue a Supplemental Statement of the Case and return the case to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. White, 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.