Citation Nr: 21062425 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-38 169 DATE: October 7, 2021 ORDER Reopening of the claim to entitlement to service connection for a right foot disability is granted. Entitlement to service connection for a right foot disability is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart disability, to include coronary artery disease, is remanded. FINDINGS OF FACT 1. New and material evidence has been added to the Veteran's file since the previous final denial in his claim to service connection for a right foot disability. 2. The Veteran does not have a right foot disability that was incurred in or due to his time in service or that is proximately due to or aggravated by any of his service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1983 to February 1987. The Veteran had requested a hearing before a Veterans Law Judge. However, in January 2020, the Veteran withdrew his request for such a hearing. New and Material Evidence Claim Rating actions are final and binding based on evidence on file at the time the veteran 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). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 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). The Veteran was previously denied service connection for a right foot disability in an October 2004 rating decision because his record did not show he had been treated for such while in service. Additionally, his records did not indicate he had a right foot disability that was related to his time in service. The Veteran did appeal this decision but withdrew his appeal in writing in December 2008. The Veteran was denied reopening of his claim to service connection for a right foot disability in a March 2014 rating decision because no new and material evidence had been submitted. Relevant evidence of record prior to the previous final rating decision included medical treatment records, a medical board determination of separation, and military personnel records. Relevant evidence of record submitted after the previous final denial includes service treatment records (STRs), medical treatment records, Social Security Administration (SSA) records, and an examination. The Board finds this evidence is both new in that it was not of record at the time of the previous final denial and it is also material in that it raises a reasonable possibility of substantiating the claim. Therefore, the claim will be reopened. Service Connection Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran contends he has a right foot disability that was incurred in or due to his time in service. The Veteran has been diagnosed with a right foot disability. The Veteran's STRs show a mention of a right toe injury and a right forefoot sprain. However, those conditions were not chronic and do appear to have resolved as no further mention of either was made. The Veteran checked that he had ongoing foot problems on his separation examination but the examiner did not note any ongoing problems with the Veteran's feet related to his sprain or toe injury. Instead, both the Veteran and the examiner noted the Veteran had fungal infections and mild athlete's foot but that the Veteran's feet were otherwise normal and the Veteran, while mentioning a fungal infection on his feet, did not mention a foot sprain or other such injury. The Veteran had an examination for his right foot in February 2014 in which the examiner noted the Veteran had been diagnosed with two right foot conditions in 2003. The examiner took note of the Veteran's statements that he hurt his feet while in service running and jumping. The examiner also recounted the Veteran's medical history as it pertained to his right foot. The examiner opined it was less likely than not the Veteran's right foot condition was incurred in or due to his time in service. The examiner explained that the Veteran had chronic pain and arthritis, there was no documentation of such while in service and that his record was silent for such until 2003. In March 2014, an examiner noted that both in-service right foot conditions were acute and self-limited and resolved with no sequalae or residual. This examiner also noted there was no evidence of chronicity in the intervening 28 years and opined, therefore, the Veteran's currently diagnosed foot conditions were less likely than not due to the injuries in service. The Board notes that the first documented evidence of a right foot disability was initially noted approximately 16 years after the Veteran's separation from service. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Regarding the claim above, the Board acknowledges the Veteran's statements that his right foot continues to affect his daily life and his belief that his right foot disability was incurred in or due to his time in service or is otherwise related to his service-connected disabilities. The Board must weigh the medical evidence along with the approximately 16 year gap in treatment against his statements of ongoing pain in his right foot. While the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature or etiology of his complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations, medical records, and objective records on file and has weighed them as discussed above and discussed the relative probative value of each. The Board also finds the VA examinations to be adequate as the examiners reviewed the Veteran's file, saw him in person, accounted for his statements as well as his medical history, and offered opinions backed by detailed explanations. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that he is entitled to service connection for his right foot disability. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Board finds a remand is necessary in the Veteran's claims to service connection for sleep apnea, coronary artery disease (CAD), and his headaches. While the Veteran's STRs do not show the Veteran suffered from sleep problems while in service, the Veteran may still be entitled to service connection on a secondary basis. The Veteran contends his sleep apnea may be secondary to his service-connected disabilities, to include his psychiatric disability and his obesity caused by his service-connected sarcoidosis or his psychiatric disability. The Veteran had an examination for his sleep apnea in February 2014 but any connection of his obesity and his service-connected disabilities was not discussed. While obesity alone is not a compensable disability for VA purposes, it can serve as an intermediate step to establish service connection for another condition. Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). Therefore, a remand is required in order to address this theory of entitlement. Pertaining to his claim to service connection for a heart disability, to include CAD, the Veteran contends his condition may be secondary to or aggravated by his service-connected sarcoidosis. The Veteran had an examination in February 2013 for his heart disability. However, this examiner did not address whether the Veteran's heart disability was aggravated by his sarcoidosis. Therefore, a remand is required in order to address this theory of entitlement. Lastly, regarding his claim to headaches, the Veteran contends that his headaches are secondary to his sarcoidosis. The Veteran had an examination in February 2013 for his headaches. However, this examiner did not address whether the Veteran's headaches were proximately due to or aggravated by his sarcoid uveitis. Therefore, a remand is required in order to address this theory of entitlement. The matters are REMANDED for the following action: 1. The AOJ should obtain the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate examination for his 1) sleep disability, to include sleep apnea and his 2) heart disability, to include coronary artery disease, and his 3) headaches. For each disability, the examiner should opine as to the following: (a) The examiner should clearly state what diagnoses the Veteran has. (b) Whether the Veteran's disability was at least as likely as not incurred in and due to his time in service. (c) Whether the Veteran's disability is proximately due to any of his service connected disabilities. (d) Whether the Veteran's disability is aggravated by any of his service connected disabilities, including his psychiatric disability and the medication he takes for it. NOTE: "Aggravation" does not mean a permanent worsening. Any temporary or incremental worsening is sufficient for a finding of "aggravation." (e) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity has been caused by any of his service-connected disabilities? (f) Is there any medical reason to accept or reject the proposition that had the Veteran not had musculoskeletal disabilities, he would not be obese? (g) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obesity has been aggravated (increased in severity) by any of his service-connected disabilities? (h) If, and only if, the Veteran's obesity is deemed to have been caused or aggravated by his service-connected disabilities, please explain whether it is at least as likely as not the Veteran's obesity aggravated his sleep disability, to include sleep apnea. The VA examiner should also note that the Veteran's obesity is not a disease or disability for VA benefits purposes; however, it may act as an intermediate step between a service-connected disability and a current disability that may be service-connected on a secondary basis. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made 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. (Continued on the next page) Any and all opinions should be supported by an explanation that accounts for the Veteran's statements and the objective evidence of record. 3. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he and his representative must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.