Citation Nr: 21062018 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-39 349 DATE: October 6, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disorder is reopened. REMANDED Entitlement to a disability rating in excess of 10 percent for chondromalacia with medial meniscal derangement and patellar spurring of the left knee (hereinafter referred to as a "left knee disability") is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for muscle spasms is remanded. Entitlement to service connection for disorders due to neurotoxic exposure, to include skin disorders, is remanded. Entitlement to service connection for a sleep disorder, including obstructive sleep apnea (OSA) and insomnia, is remanded. FINDING OF FACT The evidence received since the final March 2009 rating decision is new and material, and the service connection claim for a low back disorder is reopened. CONCLUSION OF LAW The criteria to reopen the service connection claim for a low back disorder are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to January 1999. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the May 2017 Statement of the Case (SOC) included service connection claims for presbyopia with astigmatism, a left ankle disorder, and a right forearm disorder. However, these claims were not included in the July 2017 VA Form 9, which substantively appealed the claims listed above. As such, the presbyopia, left ankle disorder, and right forearm disorder claims were not appealed and thus are not addressed herein. Additionally, the Veteran filed supplemental claims for presbyopia with astigmatism and warts affecting multiple regions of the body in April 2021. These claims are currently pending before the RO and thus will not be addressed herein. The Veteran requested both a Board hearing as well as a Decision Review Officer (DRO) hearing in July 2017, and the February 2019 Board docketing letter does not reflect that a copy was sent to the Veteran's representative. However, subsequent internal notes reflect that clarification regarding the hearing was requested from the Veteran in August 2021, and that a copy of the Board docketing letter was provided to his representative in June 2021. The Veteran has not since responded in order to request a DRO hearing. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Petitions to Reopen Previously Denied Service Connection Claim Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. It is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, the Board notes that 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a "low threshold" standard is applied. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). 1. Whether new and material evidence has been received to reopen the claim of service connection for a low back disorder In March 2009, the RO first denied service connection for low back spasm. The Veteran did not appeal the March 2009 rating decision, nor was new and material evidence received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). The Veteran petitioned to reopen his claim in July 2014. In June 2015, the RO reopened the claim and denied service connection. The Veteran submitted a timely VA Form 9 after the issuance of the SOC, and the instant appeal ensued. Based on the procedural history as reflected above, the March 2009 rating decision is the last final decision regarding the lower back claim. Thus, the question before the Board is whether the evidence received after the final March 2009 rating decision is new and material, as defined above. When the RO issued the March 2009 rating decision, the record included service treatment records (STRs), an October 2008 VA examination report, a January 2009 VA addendum opinion, an April 2008 claim application, and the Veteran's statements. The March 2009 rating decision denied service connection for a low back disorder based on a lack of nexus to service. The pertinent evidence obtained since the March 2009 rating decision includes VA treatment records, articles submitted by the Veteran, the Veteran's statements, and a March 2021 hearing transcript. The Board concludes that the evidence received subsequent to the last final decision dated in March 2009 is new and material as it is not cumulative and, when considered with earlier evidence of record, relates to unestablished elements necessary to substantiate the claims. Specifically, the Veteran raised and submitted evidence indicating continued symptomatology since service, and addressing service connection secondary to his knees as well as Gulf War illness. For this reason, the petitions to reopen the service connection claim for a low back disorder is granted. REASONS FOR REMAND As an initial matter, the Veteran indicated that his personnel records may corroborate his reports of exposure to chemicals and other toxic substances. Unfortunately, his personnel files do not appear to be associated with the claims file and therefore should be obtained and associated with the claims file upon remand. Additionally, the Board notes that new evidence, specifically VA treatment records and VA examination reports, were associated with the claims file after the July 2017 SOC was issued. Therefore, this VA-generated evidence was not reviewed by the RO. As such, the claims are remanded below. Issues 1-2: Entitlement to a disability rating in excess of 10 percent for a left knee disability and to service connection for a right knee disorder is remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if appropriate, with range-of-motion (ROM) measurements of an opposite undamaged joint. The Board has reviewed the VA examination reports and concludes that they do not meet the specifications of Correia in order for the Board to adequately assess the Veteran's service-connected left knee disability. The March 2015 VA examination only included the ROM testing results for the left knee and did not provide ROM measurements of the opposite joint. Additionally, although flexion was limited to 90 degrees and extension was normal, the Veteran had pain with both flexion and extension. Unfortunately, the examiner did not specify at what point pain began. Furthermore, the examiner did not discuss joint testing on passive motion or with weight-bearing and nonweight-bearing. The Veteran was also provided VA examinations in May 2021 and June 2021. Active ROM testing revealed flexion to 90 degrees with pain exhibited with flexion. Unfortunately, the examiners again did not specify at what point pain began. Additionally, the Board acknowledges that the evidence indicates that the Veteran has a left knee meniscal tear. However, it is not clear whether he also has frequent episodes of "locking," pain, and effusion into the joint, as required under Diagnostic Code 5258 for the sole 20 percent rating. For these reasons, remand is necessary to afford the Veteran a new VA examination in order to completely evaluate the nature and severity of the Veteran's left knee disability. A VA examination for the left knee disability will also require examination of the right knee. Therefore, additional evidence may arise that may be relevant to the service connection claim for the right knee disorder. As such, the right knee service connection claim is also remanded. Additionally, the Veteran contends that his right knee disorder is secondary to his service-connected bilateral foot disability and/or his service-connected left knee disability. Therefore, an opinion regarding secondary service connection is also warranted. 3. Entitlement to service connection for a low back disorder is remanded. The low back disorder claim must be remanded in order to obtain an adequate medical opinion. The Veteran was only provided a VA examination in October 2008, at which time the examiner found that x-rays revealed evidence of lumbar spondylosis and opined that it was less likely than not incurred in or caused by service as he had an acute self-limiting lumbar spine strain during service with no additional evidence showing continuity of complaint or any presumptive conditions within one year of discharge. Unfortunately, the examiner did not address the Veteran's report of re-injuring his lower back when he fell and twisted his back while serving in Korea, or his report of ongoing flare-up pain since that time. The Board notes that a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In other words, the absence of treatment or symptoms in service is not necessarily fatal to the claims for service connection. Additionally, an August 2017 VA treatment record reflects the Veteran's report that he was told that his back pain was due to him favoring his knees. Therefore, an opinion regarding secondary service connection is also warranted. As such, a remand is required in order to more completely and adequately evaluate the nature and etiology of the Veteran's low back disorder. 4. Entitlement to service connection for muscle spasms is remanded. A remand is necessary in order to provide a VA examination for the muscle spasms claim. The Veteran reports having muscle spasms in the right thigh. See March 2021 hearing transcript. He testified that they were associated with the low back and knees. As the evidence reflects a current report of muscle spasms and his contention that they may be related to his low back disorder and/or knee disabilities, a VA examination is indicated. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As he has not yet been afforded a VA examination in order to address the nature and etiology of his claimed muscle spasms, this should be accomplished on remand. The Board also notes that the Veteran's claim for service connection for muscle spasms is thus inextricably intertwined with the claims for service connection for his lower back disorder and right knee disorder remanded herein, and the adjudication of this claim depends on the outcome of the remanded lower back disorder and right knee disorder claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 5. Entitlement to service connection for disorders due to neurotoxic exposure, to include skin disorders, is remanded. A remand is required in order to provide a new VA examination. At the March 2021 hearing, the Veteran testified that he had skin sores on his hands, thighs, buttocks, and leg that would not heal as a result of neurotoxic exposure during service. The Veteran is already service connected for certain skin disorders, specifically residuals of excision of a cyst above the left eye, alopecia areata, and warts. However, the January 2009 VA examination report reflects a diagnosis of nonspecified dermatitis and an opinion was not provided as to whether his dermatitis was related to service. 6. Entitlement to service connection for a sleep disorder, to include OSA and insomnia, is remanded. A remand is necessary in order to provide a VA examination for the Veteran's sleep disorder claim. The evidence reflects diagnoses of insomnia and OSA. See 4/9/09 VA treatment record; 11/3/16 VA treatment record. The Veteran contends that his OSA is secondary to his service-connected posttraumatic stress disorder (PTSD). As the evidence reflects current diagnoses of insomnia and OSA and his contention that they may be related to his service-connected PTSD, a VA examination is indicated. See McLendon, supra. As he has not yet been afforded a VA examination in order to address the nature and etiology of his claimed sleep disorder, this should be accomplished on remand. The matters are REMANDED for the following action: 1. Ensure that the Veteran's complete personnel records are obtained and associated with the claims file. Any and all efforts to obtain such should be documented. 2. Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the current severity of his service-connected left knee chondromalacia with medial meniscal derangement and patellar spurring and the nature and etiology of his right knee disorder. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner is asked to examine the Veteran, review his claims file, and then respond, with compete rationale, to the following: a) Indicate all current symptoms associated with the Veteran's service-connected left knee disability, and describe the severity of such symptoms. b) Test and report the ROM in active motion, passive motion, weight-bearing, and nonweight-bearing for BOTH knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. c) In reporting the ROM findings, comment on the extent of any painful motion, INCLUDING at which measurement the pain begins, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups or upon repetitive use testing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also elicit and consider the Veteran's lay statements regarding any other functional loss and knee stability. If it is not possible to provide a specific measure, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. d) Clarify whether the Veteran has a left knee meniscal tear with frequent episodes of "locking," pain, and effusion into the joint. e) Provide an opinion as to whether the Veteran's right knee disorder at least as likely as not (50 percent probability or greater) was incurred in, caused by, aggravated by, or is otherwise related to service. *The examiner should ADDRESS and/or DISCUSS: (i) The Veteran's report of exposure to Agent Orange, other herbicides, ionizing radiation, and environmental hazards (see April 2008 claim application); (ii) The May 2008 Radiation Risk Activity Information Sheet; (iii) The article the Veteran submitted titled "Pyridostigmine Bromide and Gulf War Veterans;" (iv) The January 2015 statement of deployment; (v) The November 1988 STR reflecting an injury to the right knee area while playing racket ball one day prior; and (vi) The June 2021 VA examination report reflecting the Veteran's report of an onset in 1993 due to wear-and-tear over time. f) Provide an opinion as to whether the right knee disorder at least as likely as not (50 percent probability or greater) was caused by, aggravated by, or otherwise related to his service-connected left knee disability, bilateral foot disorder, and/or other service-connected disabilities. *The examiner should ADDRESS and/or DISCUSS: (i) A July 2017 correspondence in which the Veteran contended that his right knee disorder was secondary to his service-connected bilateral foot disorder, and (ii) The March 2021 hearing transcript that reflects his testimony that his right knee disorder was secondary to the left knee disability as it took the burden for the left knee and compensated too much. g) Provide information concerning the functional impairment resulting from the service-connected left knee disability and/or right knee disorder that may impact the Veteran's ability to function and perform tasks in a work or work-like setting. A complete rationale should be provided for any opinion provided. 3. Obtain an addendum medical opinion by an appropriate VA examiner to determine the nature and etiology of the Veteran's low back disorder. The examiner is requested to review all pertinent records associated with the claims file. The claims file, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. After reviewing the claims file in its entirety, the examiner is asked to respond to the following: a) Provide an opinion as to whether the Veteran's lower back disorder at least as likely as not (50 percent probability or greater) was incurred in, caused by, aggravated by, or is otherwise related to service. *The examiner should ADDRESS and/or DISCUSS: (i) The Veteran's report of exposure to Agent Orange, other herbicides, ionizing radiation, and environmental hazards (see April 2008 claim application); (ii) The May 2008 Radiation Risk Activity Information Sheet; (iii) The article the Veteran submitted titled "Pyridostigmine Bromide and Gulf War Veterans;" (iv) The January 2015 statement of deployment; (v) May 1996 STRs reflecting low back pain after pulling a target out of the ground, an assessment of lumbosacral strain, and normal x-rays; (vi) The November 1997 examination report reflecting a normal clinical evaluation of the spine, but the Veteran's report of recurrent back pain or back injury, specifically back pain, back spasms, and pulled muscles; (vii) The September 1998 retirement examination report reflecting the Veteran's report of recurrent back pain or injury, specifically a back injury while lifting targets; (viii) The October 2008 VA examination report reflecting the Veteran's report of back spasms after lifting targets in 1997, reinjuring his back when he fell on an embankment and twisted his lower back in Korea, ongoing flare-up pain since that time, and x-rays revealing lumbar spondylosis; (ix) A January 2009 VA addendum reflecting a negative opinion; and (x) The March 2021 hearing transcript reflecting the Veteran's testimony about injuring his back after pulling targets out of the ground and continued back problems ever since. b) Provide an opinion as to whether the Veteran's low back disorder at least as likely as not (50 percent probability or greater) was caused by, aggravated by, or otherwise related to his right knee disorder, service-connected left knee disability, and/or other service-connected disabilities. The examiner should provide an explanation for any conclusions reached. 4. Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the nature and etiology of his claimed muscle spasms. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner is asked to examine the Veteran, review his claims file, and then respond, with compete rationale, to the following: a) Confirm whether the Veteran has a diagnosis involving muscle spasms, including in the right thigh. b) If so, provide an opinion as to whether it was at least as likely as not (50 percent probability or greater) incurred in, caused by, aggravated by, or otherwise related to service. *The examiner should ADDRESS and/or DISCUSS: (i) The Veteran's report of exposure to Agent Orange, other herbicides, ionizing radiation, and environmental hazards (see April 2008 claim application); (ii) The May 2008 Radiation Risk Activity Information Sheet; (iii) The article the Veteran submitted titled "Pyridostigmine Bromide and Gulf War Veterans;" and (iv) The January 2015 statement of deployment. c) Provide an opinion as to whether the muscle spasms are at least as likely as not (50 percent probability or greater) caused by, aggravated by, or otherwise related to his lower back disorder, right knee disorder, service-connected left knee disability, and/or other service-connected disabilities. A complete rationale should be provided for any opinion provided. 5. Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the nature and etiology of his claimed neurotoxic exposure disorders to include skin disorders. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner is asked to examine the Veteran, review his claims file, and then respond, with compete rationale, to the following: a) Confirm all skin diagnoses, including dermatitis, during the appeal period and, if possible, the onset of such. Additionally, clarify whether the Veteran has other disorders related to neurotoxic exposure. b) For each diagnosis OTHER THAN those already service connected, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) incurred in, caused by, aggravated by, or otherwise related to service. *The examiner should ADDRESS and/or DISCUSS: (i) The Veteran's report of exposure to Agent Orange, other herbicides, ionizing radiation, and environmental hazards (see April 2008 claim application); (ii) The May 2008 Radiation Risk Activity Information Sheet; (iii) The article the Veteran submitted titled "Pyridostigmine Bromide and Gulf War Veterans;" and (iv) The January 2015 statement of deployment. A complete rationale should be provided for any opinion provided. 6. Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the nature and etiology of his claimed sleep disorder, to include OSA and insomnia. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner is asked to examine the Veteran, review his claims file, and then respond, with compete rationale, to the following: a) Identify all sleep disorders diagnosed during the appeal period and, if possible, the onset of such. b) For each diagnosis, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) incurred in, caused by, aggravated by, or otherwise related to service. *The examiner should ADDRESS and/or DISCUSS: (i) The Veteran's report of exposure to Agent Orange, other herbicides, ionizing radiation, and environmental hazards (see April 2008 claim application); (ii) The May 2008 Radiation Risk Activity Information Sheet; (iii) The article the Veteran submitted titled "Pyridostigmine Bromide and Gulf War Veterans;" and (iv) The January 2015 statement of deployment. c) For each diagnosis, provide an opinion as to whether it at least as likely as not (50 percent probability or greater) was caused by, aggravated by, or otherwise related to his service-connected PTSD and/or other service-connected disabilities. A complete rationale should be provided for any opinion provided. 7. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee, 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.