Citation Nr: 21005008 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-56 405 DATE: January 28, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for sleep apnea is reopened. New and material evidence having been received, the previously denied claim of entitlement to service connection for residuals of a fracture of the third metatarsal of the left foot is reopened. Entitlement to service connection for a left foot disability is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. An October 2008 rating decision, inter alia, denied service connection for residuals of fracture of third metatarsal, left foot. The appellant was duly notified of the RO’s decision and his appellate rights in an October 2008 letter, but did not appeal, nor was new and material evidence received within the applicable period. 2. A February 2013 rating decision, inter alia, denied service connection for sleep apnea. The appellant was duly notified of the RO’s decision and his appellate rights in a February 2013 letter, but did not appeal, nor was new and material evidence received within the applicable period. 3. Evidence received since the final October 2008 rating decision denying the claim of service connection for residuals of fracture of third metatarsal, left foot, relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a left foot disability. 4. Evidence received since the final February 2013 rating decision denying the claim of service connection for sleep apnea relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for sleep apnea. 5. The evidence is in relative equipoise as to whether the appellant’s current left foot disability, diagnosed as residuals of metatarsal fractures, was incurred in or is otherwise causally related to his active service. CONCLUSIONS OF LAW 1. The October 2008 rating decision denying entitlement to service connection for residuals of fracture of third metatarsal, left foot, is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. The February 2013 rating decision denying entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for a left foot disability. 38 U.S.C. §§ 5107, 5108 (2018); 38 C.F.R. § 3.156 (2020). 4. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for sleep apnea. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from October 1977 to February 1978, February 2003 to July 2003, and December 2004 to June 2006, including service in the Southwest Asia Theater of Operations. He had additional periods of active duty for training, including in July 1987 when he injured his left foot, as detailed infra. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied the application to reopen the previously denied claims of entitlement to service connection for sleep apnea and residuals of a fracture of the third metatarsal of the left foot because new and material evidence had not been received . The appellant filed a timely Notice of Disagreement (NOD), received in July 2015. A Statement of the Case (SOC) was issued in October 2016. A timely substantive appeal was received in November 2016. The appellant was afforded a hearing by video conference before the undersigned Veterans Law Judge in March 2020. A transcript is of record. 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 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 previously denied claim of entitlement to service connection for sleep apnea is reopened. 2. New and material evidence having been received, the previously denied claim of entitlement to service connection for residuals of a fracture of the third metatarsal of the left foot is reopened. An October 2008 rating decision, in pertinent part, denied entitlement to service connection for residuals of fracture of third metatarsal, left foot. The appellant was duly notified of the RO’s decision and his appellate rights in an October 7, 2008, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. In February 2012, the appellant requested that his claim of entitlement to, inter alia, sleep apnea be reopened. A March 2008 rating decision, in pertinent part, denied entitlement to service connection for sleep disorder (insomnia). The appellant was duly notified of the RO’s decision and his appellate rights in a March 6, 2008, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. A claim for service connection for a different diagnosis is not subject to the requirement to reopen, even where the veteran reports the same symptoms as in a previously finally denied claim for service connection (e.g., conductive vs. sensorineural hearing loss). Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). As such, the appellant’s sleep apnea claim was adjudicated by the RO on the merits, without need of new and material evidence. Indeed, a February 2013 rating decision, in pertinent part, denied entitlement to service connection for sleep apnea. The appellant was duly notified of the RO’s decision and his appellate rights in a February 13, 2013, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. 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 has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final decisions discussed above. Evidence received since the final October 2008 rating decision denying service connection for residuals of a fracture of the third metatarsal of the left foot includes the appellant’s March 2020 testimony regarding left foot symptoms since the in-service injury which have continued to this day. This evidence is new, as the evidence of record at the time of the last final decision did not include any indication of a nexus between a current left foot disability and the appellant’s active service. Further, this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claims and triggers VA’s duty to provide a medical examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination should be provided). Evidence received since the final February 2013 rating decision denying service connection for sleep apnea includes the appellant’s August 2020 testimony that a VA doctor told him that his sleep apnea was related to his service-connected PTSD. This evidence is new, as the evidence of record at the time of the last final decision did not include any indication of a nexus between sleep apnea and the appellant’s active service, or a service-connected disability. Further, this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claims and triggers VA’s duty to provide a medical examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination should be provided). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant’s previously denied claims of service connection for residuals of a fracture of the third metatarsal of the left foot and sleep apnea are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. For the reasons that follow, the record is sufficient to warrant granting the benefits sought with respect to the claim of service connection for residuals of a fracture of the third metatarsal of the left foot. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Although the record is sufficient to warrant reopening of the claim of service connection for sleep apnea, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term “active military, naval, or air service” includes: (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). 3. Entitlement to service connection for a left foot disability is granted. The Board finds that the evidence is in relative equipoise as to whether entitlement to service connection for a left foot disability, diagnosed as residuals of metatarsal fractures, is warranted. The appellant injured his left foot in July 1987 when he ran into a chain link fence and jammed his foot into the fence. He was diagnosed with status post fracture of the third metatarsal. He was placed on physical profile and issued crutches. This July 1987 left foot injury was determined to have been in the line of duty in August 1987. Indeed, on a DA Form 2173, Statement of Medical Examination and Duty Status, the Adjutant General of the State of Alabama determined that the appellant’s July 11, 1987, left foot injury was incurred in the line of duty. A September 2008 imaging study of the left foot, which had been ordered due to clinical history of status post broken toe left metatarsal, revealed avulsion fracture of undetermined age along the lateral base of the left fifth metatarsal bones. The appellant testified during his March 2020 Board hearing before the undersigned that he injured his left foot in 2004 while deployed in Iraq. He hit his foot on a wall while running and did not have any issues with his foot immediately after the injury, but symptoms began when he tried to put his shoe on for formation. The appellant testified that he has continually had left foot pain since this time. While service treatment records do not include complaints or treatment for the left foot in or about 2004, on his January 2006 Report of Medical History, the appellant endorsed foot pain when walking long distances. In February 2006, when the examiner’s summary and elaboration of all pertinent data portion of the report was completed, the appellant’s foot pain from long marches, occasional cramps, and left metatarsal fracture were noted. The examiner noted that there was currently no problem related to the metatarsal fracture. During a September 2008 VA examination, the appellant reported that he injured his left metatarsal in the 1980s when he ran into a chain link fence and that his foot has gotten progressively worse since that time. Examination was notable for antalgic gait, poor propulsion, and an inability to stand for more than a few minutes or walk more than a few yards. The third toe was affected by pain, swelling, redness, stiffness, fatigability, weakness, and lack of endurance. Imaging studies revealed avulsion fracture of the left fifth metatarsal bone of undetermined age. No etiological opinion was offered. Although some details regarding the appellant’s reported left foot injuries are unclear or missing, the Board finds that the evidence is still in relative equipoise as to whether the appellant’s current left foot disability was incurred in or is otherwise causally related to his active service. Indeed, the appellant has competently reported continuing left foot problems since his 1987 injury. Notably, the appellant’s more recent statements, including during the March 2020 hearing, describe an additional, more recent, left foot injury. Regardless of whether a subsequent left foot injury, or acute exacerbation, indeed occurred while in Iraq, service connection for a left foot disability is warranted because the 1987 injury occurred during a period of ACDUTRA and the second injury would have occurred while on active duty as well. While the appellant’s March 2020 testimony before the undersigned focused on his reported second left foot injury, and symptoms since such time, his previous reports of continuing symptoms since his 1987 foot injury do not necessarily conflict. Rather, the appellant has competently reported continual, intermittent left foot symptoms since both injuries, and the latter could have been an exacerbation of the 1987 injury. Further, during his March 2020 hearing, he testified that three toes were affected by the latter left foot injury which occurred in or about 2004 while deployed to Iraq, and at least one had been fractured. Indeed, left foot fracture residuals were present on a September 2008 imaging study and the appellant competently reported continuing left foot symptoms since his 1987 injury during his September 2008 examination. Although 1987 imaging studies indicate a fracture of the third metatarsal and 2008 imaging studies indicate a fracture of the fifth metatarsal, the Board will resolve reasonable doubt in the appellant’s favor, and find that his current left foot disability, characterized by residuals of metatarsal fractures, was incurred in or is otherwise causally related to his active service. Having had the opportunity to observe the appellant’s demeanor during his March 2020 hearing, and absent contradictory evidence in the record, the Board finds the appellant’s reports regarding his left foot injuries and symptoms credible. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for a left foot disability, diagnosed as residuals of metatarsal fractures. REASONS FOR REMAND 4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. During his August 2020 hearing before the undersigned, the appellant testified that he was treated for, and diagnosed with, sleep apnea at the Tuskegee or Montgomery VA Medical Center (VAMC) in about 2005. His wife testified that she has observed him gasping, snoring, and choking in the night since approximately 2004 to 2005 following his return from Iraq. Associated with the claims file are medical records from the Central Alabama Veterans Health Care System, which encompasses the Montgomery and Tuskegee VAMCs. These records indicate that the appellant’s first appointment in the Central Alabama Veterans Health Care System was in July 2006 and at the Montgomery VAMC. In November 2008, the appellant’s sleep was notable for loud snoring. Previously, there were complaints regarding nightmares and initial and middle insomnia. Service treatment records reveal that the appellant complained of insomnia and was prescribed medication for such. See e.g. February 2006 clinical note. A July 2010 pulmonary consult states that the appellant had been referred by a VA clinician for evaluation of his problems with sleep. The appellant experienced loud snoring at night and insomnia, but there was no history of a sleep study. The appellant reported that he has had sleep problems since he came back from Iraq. A sleep study was ordered. The appellant was diagnosed with mild sleep apnea following overnight polysomnography performed at Baptist South in August 2010. At that time, the appellant reported that he had trouble getting to sleep at night, awakens frequently during the night, awakens too early and has difficulty going back to sleep, and does not feel rested after a night’s sleep. He reported that he had been told by others that he snored loudly and that loud snoring had been noted for five years. He had also been told that he stopped breathing during sleep but did not know how long such had been noted. The appellant also endorsed awakening with gasping or choking during the night. On a November 2010 questionnaire completed in conjunction with an additional sleep study performed at Baptist South, the appellant reported that he had been told he had a sleep disorder by a doctor at Fort Benning. The appellant was afforded a VA examination in January 2013. The claims file was reviewed. The appellant reported that he had problems going to sleep and then would wake up without sleeping very much while on active duty. He also indicated that he sometimes had nightmares or felt like he could hear someone hollering for help, both of which would wake him up. He endorsed feeling tired while on active duty. The appellant also reported a history of snoring. While he indicated that he was diagnosed with sleep apnea in 2005 or 2006 while at Fort Benning, the appellant stated that he did not have a sleep study until 2010. The VA examiner noted that the appellant’s service treatment records included a 2006 note regarding a visit for insomnia. The VA examiner opined that it was less likely than not that the appellant’s current sleep apnea was incurred in or was otherwise causally related to his active service. Service treatment records revealed that anxiety and worry symptoms were the cause of the appellant’s sleep disruption. Medical Evaluation Board paperwork further referenced frequent worrying. The examiner explained that the types of disruptions reported by the appellant during the examination, and described in his service treatment records, are not consistent with sleep disturbance due to sleep apnea. The examiner noted that sleep apnea was not diagnosed until four years after service and opined that the diagnosis was at least as likely as not a “life event.” An additional VA medical opinion was obtained in October 2016. Following review of the claims file, the VA examiner opined that it was less likely than not that the appellant’s sleep apnea was causally related to his service-connected PTSD. Medical literature explains that obstructive sleep apnea involves collapse of the airway during sleep, which interrupts breathing. This is anatomical. In most adults, the common cause of sleep apnea is excess weight and obesity, which is associated with soft tissue of the mouth and throat. The soft tissue relaxes and can block the airway while a person is asleep. Per medical literature, obstructive sleep apnea is not caused by PTSD. Notably, however, research indicates that treatment for sleep apnea can improve symptoms of PTSD. The October 2016 VA examiner did not address whether sleep apnea had been aggravated by PTSD. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, a new opinion should be obtained upon remand. The matter is REMANDED for the following action: 1. A VA medical opinion should be obtained as to the nature and etiology the appellant’s obstructive sleep apnea. The claims file must be made available to the examiner. The need for additional examination of the appellant is left to the discretion of the examiner rendering the requested opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that obstructive sleep apnea manifested in or is otherwise causally related to active duty service or any incident therein. If not, is it at least as likely as not that obstructive sleep apnea was proximately due to or the result of the appellant’s service-connected PTSD? If neither, is it at least as likely as not that obstructive sleep apnea was aggravated (made worse) by service-connected PTSD? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. The examiner’s attention is directed to: (a) the November 2008 clinical note which indicates sleep was notable for loud snoring; (b) service treatment records including prescribed medication for insomnia; (c) the July 2010 pulmonary consult; (d) 2010 records from Baptist South regarding sleep studies and the appellant’s reports of symptoms; (e) the January 2013 VA examination report; and (f) the October 2016 VA medical opinion. In providing the requested opinions, the clinician should consider the appellant’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant’s reported symptoms. If there is any medical reason to accept or reject the proposition that the reported in-service symptoms such as snoring or insomnia represented the onset of his current sleep apnea disability, this should be noted.   Stated another way, do the appellant’s reports about his in-service symptoms and post-service symptoms align with how the currently diagnosed sleep apnea is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.