Citation Nr: 21001256 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-04 973A DATE: January 7, 2021 ORDER New and material evidence having been received, the claim for service connection for a low back pain/ back condition is reopened. Service connection for a low back disability is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for residuals of severe facial sunburn is remanded. FINDINGS OF FACT 1. A claim for service connection for low back pain was denied in a September 2007 rating decision. The Veteran was informed of his appellate rights but did not file a timely Notice of Disagreement and the RO did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 2. Evidence received since the September 2007 rating decision relates to unestablished facts necessary to substantiate the claim for service connection for low back pain, and this evidence raises a reasonable possibility of substantiating the claim. 3. The evidence is at least in equal balance that the Veteran’s back disability was caused by injuries incurred during active duty. CONCLUSIONS OF LAW 1. The September 2007 rating decision that denied the claim for service connection for low back pain is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received, and the claim for service connection for low back pain is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Naval Reserve from September 1996 to September 1999 and May 2006 to February 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and August 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2007, the Veteran filed a claim for service connection for “unable to sleep properly due to the back pain.” A September 2007 rating decision denied service connection for sleep disorder/ sleep disturbance. The Veteran did not appeal the decision and relevant evidence was not received during the time period to appeal; therefore, the September 2007 rating decision is final. 38 C.F.R. § 20.1103. The Board considers the current claim for sleep apnea as distinct from sleep disorder/ sleep disturbance, and as such, a new claim. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 203–05 (2009). As the claim for sleep apnea is a new claim, the Veteran is not required to submit new and material evidence to reopen it. Concerning the claim for service connection for residuals of severe facial sunburn, in August 2016 the Veteran’s former attorney filed a Notice of Disagreement in response to the July 2016 Statement of the Case. As the Notice of Disagreement was written correspondence that identified the sunburn issue and set out specific argument relating to errors of fact or law made by the Agency of Original Jurisdiction in making the decision, the Board will treat the August 2016 Notice of Disagreement as a timely VA Form 9 Substantive Appeal and consider the issue as having been properly appealed. 38 C.F.R. § 19.22; see Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal). In August 2019, the Veteran and his wife testified at a hearing before the undersigned; a transcript of that hearing is of record. New and material evidence for low back pain/ back condition The claim for service connection for low back pain was originally denied in a September 2007 rating decision. Service connection was denied on the basis that there was no evidence of a current disability. The Veteran did not timely file a Notice of Disagreement in the matter and new and material evidence was not actually or constructively received within the one-year appeal period. Therefore, the September 2007 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 received 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The evidence received since the September 2007 rating decision includes a February 2013 private treatment record assessing chronic lumbar back pain and lumbar facet arthropathy, a February 2013 MRI assessing disc degeneration with diffuse broad base disc protrusion, and an April 2013 letter from a private chiropractor stating that the Veteran has lumbar disc herniations and lumbar disc degeneration. This evidence is new as it was not before adjudicators when the Veteran’s claim was last denied in the September 2007 rating decision, and it is not cumulative or redundant of the evidence of record at the time of that decision. The evidence is material in that it indicates that the Veteran has a current diagnosed low back disability. Thus, it relates to an unestablished fact necessary to substantiate the claim for service connection for low back pain and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Entitlement to service connection for a low back disability The Veteran contends that his low back disability was caused by injuries incurred during active duty. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (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 - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases (such as arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has a current low back disability. He was diagnosed with lumbar facet arthropathy in February 2013, and a February 2013 MRI identified disc degeneration with diffuse broad base disc protrusion, and in April 2013 the Veteran’s chiropractor wrote to VA, stating that the Veteran has lumbar disc herniations and lumbar disc degeneration. Therefore, the first element of direct service connection, a current disability, is present. Shedden, 381 F.3d at 1166-67. The evidence also indicates that the Veteran had back pain during his active duty service. The Veteran reported low back pain in March 1999 and the clinician assessed “LBP probably muscular.” When the Veteran reported it again in July 1999, the clinician assessed “LBP probably mechanical.” A doctor assessed “LBP strain” in July 1999. In December 2006, the Veteran was diagnosed with “back strain lumbar” which had been present for 3 to 4 days. In his January 2007 post-deployment health assessment, the Veteran reported back pain on awakening. Subsequent Naval Reserve medical histories and examinations note recurrent back pain. An April 2013 letter from a fellow servicemember states that in October 2006 the Veteran injured his back when he was lifting equipment into a container and his feet became trapped as he was turning. The fellow servicemember states that he observed the Veteran in severe pain and that he had difficulty standing and walking afterward. Thus, the second element of direct service connection, an in-service incident or illness, is also present. Shedden, 381 F.3d at 1166-67. Finally, the competent medical evidence indicates that the Veteran’s current disability was caused by his in-service treatment for back pain and injury. In August 2007, VA performed a Compensation and Pension Examination for joints and diagnosed a lumbar sprain/strain, and right sacroiliac joint dysfunction. However, VA did not obtain a medical opinion at that time. In May 2019, the Veteran’s private physician Dr. K. submitted a medical opinion stating that “there is a direct causal relationship between his military deployment from the years of 2006 to 2007 from which [the Veteran] has sustained injuries which continue to remain symptomatic.” Dr. K. described the history of the Veteran’s disability and treatment in the opinion. The doctor based his opinion on his experience treating the Veteran, a detailed review of the Veteran’s medical records, including a review of the Veteran’s physical examination for nonmilitary employment in 2000, and surgical interventions since his military service. He also indicated that his opinion was being expressed with a reasonable degree of medical probability. As the opinion had a rationale based on thorough consideration of the Veteran’s service and medical history, the Board places great weight of probative value on this medical opinion and finds it persuasive of a conclusion that the Veteran’s current back disability is related to injuries and treatment received during service. As the evidence is at least in equipoise that the Veteran’s current low back disability is caused by the Veteran’s active duty service, service connection is warranted. Shedden, 381 F.3d at 1166-67. REASONS FOR REMAND Entitlement to service connection for sleep apnea and residuals of severe facial sunburn is remanded. VA must order an examination when there is competent evidence of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability may be associated with the Veteran's service or another service-connected disability; and there is insufficient evidence for VA to decide the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The record does not contain a medical opinion for the Veteran’s sleep apnea. He was diagnosed with obstructive sleep apnea in private sleep studies in 2008 and 2013. The Veteran, his wife, and a fellow servicemember report the Veteran began to snore loudly during his deployment in 2006 to 2007. Here, the low threshold standards are met, and remand is necessary for a VA examination to determine the etiology of the Veteran’s obstructive sleep apnea. Concerning the Veteran’s facial skin disorder, private dermatologist records include diagnoses of klebsiella oxytoca infection on the nose, contact dermatitis, neck abscess, scattered benign nevi, lentigo, pearly papule, and other skin conditions. The Veteran’s testimony and letters from fellow servicemembers indicate that he had a severe sunburn in July 1998, and the Veteran has claimed that the sunburn caused a current skin disorder. A letter from physician’s assistant K.P. notes that she treats the Veteran for his skin condition. She notes that although the Veteran was not under her care when he had a sunburn in service, based on statements from fellow service members and photographs, he appears to have had a severe sunburn during his time aboard the U.S.S. Cole. She stated that generally severe sunburns lead to permanent skin damage and sun sensitivity, requiring daily protection. This opinion is stated in general terms and does not clearly indicate that the Veteran’s diagnosed skin conditions are related to the in-service sunburn. As such, it is inadequate to evaluate the etiology of the Veteran’s diagnosed skin conditions. As such, remand for a VA examination is necessary. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination for his diagnosed obstructive sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is obstructive sleep apnea at least as likely as not related to service, including symptoms experienced during service? The examiner’s attention is directed to the sleep studies of 2008 and 2013, the fellow servicemember’s April 2013 letter stating that the Veteran snored loudly during his deployment in 2006 to 2007, and the Veteran and his wife’s statements, including at the August 2019 hearing, that the Veteran snored loudly on his return from that deployment. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. Schedule the Veteran for a VA examination for his claimed residuals of severe facial sunburn. The examiner must review the claims file. The examiner is asked to provide a response to the following: Are the Veteran’s facial skin disorders, including klebsiella oxytoca infection on the nose, contact dermatitis, neck abscess, scattered benign nevi, lentigo, pearly papule and any other skin condition diagnosed, at least as likely as not related to service, including the facial sunburn of July 1998? The examiner’s attention is directed to the statements from the Veteran and fellow servicemembers that the Veteran had a severe sunburn in July 1998, and the July 1998 photograph of the Veteran. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally,   the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.