Citation Nr: 21062651 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-51 503 DATE: October 8, 2021 ORDER New and material evidence having been received, the service connection claim for a thoracic spine disability is reopened. New and material evidence having been received, the service connection claim for sleep apnea is reopened. REMANDED Entitlement to service connection for a thoracic spine disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic fatigue syndrome is remanded. FINDINGS OF FACT 1. In a June 2012 rating decision, the RO denied entitlement to service connection for a thoracic spine disability. The Veteran filed a Notice of Disagreement in June 2013, but did not timely appeal the decision or submit new and material evidence during the applicable one-year appellate period. The rating decision therefore became final. 2. The evidence associated with the claims file subsequent to the June 2012 rating decision is not cumulative and redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. In a June 2012 rating decision, the RO denied entitlement to service connection for sleep apnea. The Veteran filed a Notice of Disagreement in June 2013, but did not timely appeal the decision or submit new and material evidence during the applicable one-year appellate period. The rating decision therefore became final. 4. The evidence associated with the claims file subsequent to the June 2012 rating decision is not cumulative and redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2012 rating decision as to the denial of service connection for a thoracic spine disability is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a thoracic spine disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. 3. The June 2012 rating decision as to the denial of service connection for sleep apnea is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1988 to November 1988 and from September 1990 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing has been associated with the record. New and Material 1. New and material evidence having been received, the service connection claim for a thoracic spine disability is reopened 2. New and material evidence having been received, the service connection claim for sleep apnea is reopened The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA, and 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. 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 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 submitted 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). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). In a June 2012 rating decision, the RO denied service connection for a thoracic spine disability and sleep apnea. The Veteran was notified of the June 2012 rating decision and his procedural and appellate rights in a June 20, 2012, letter sent to his address of record and to his representative. The Veteran filed a Notice of Disagreement in June 2013. A Statement of the Case was issued in May 2014, continuing the denial of the Veteran's claims. No additional evidence was received within one year of notice of the June 2012 rating decision and the Veteran did not timely file a VA Form 9 to perfect an appeal. For this reason, the June 2012 rating decision denying the Veteran's claims for service connection for a thoracic spine disability and sleep apnea became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence associated with the claims file subsequent to the June 2012 rating decision includes, in pertinent part, the Veteran's testimony during his June 2021 hearing. As to the Veteran's thoracic spine disability, he gave a detailed account of a 1989 motor vehicle accident during service, to include testimony that he first sought treatment for back pain in Clarksdale, Mississippi in 1989, and again while serving in Saudi Arabia. As to his claimed sleep apnea, the Veteran testified that he believed the condition was caused or aggravated by his service-connected chronic fatigue syndrome. This evidence is new, as it was not of record at the time of the June 2012 rating decision. It is also material to the reason for the prior denial, namely whether the Veteran has a current disability that is etiologically related to military service. Accordingly, the Board concludes that the criteria for reopening the Veteran's claims for service connection for a thoracic spine disability and sleep apnea are met. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a thoracic spine disability is remanded. As noted above, the Veteran contends that his thoracic spine disability is related to a motor vehicle accident during service. He was afforded a VA examination to determine the etiology of the condition in March 2011. The examiner opined that the condition was not related to service. As rationale, the examiner stated only that given the Veteran's history, in association with his physical exam and lack of x-ray findings, it is unlikely that his back pain is related to military service. In this case, the Board finds that the March 2011 examination is inadequate as the examiner was unable to or failed to consider evidence that is relevant to the Veteran's claim. Specifically, the examiner did not consider an October 1990 treatment record where the Veteran reported sharp pain in the lower lumbar area with history of back injury in 1989; an October 1990 treatment record showing complaints of back pain that had lasted 2 years, with a diagnosis of bilateral paraspinal spasm; a March 1991 sick slip indicating that the Veteran had upper back pain and was diagnosed with a muscle spasm; a May 1991 Report of Medical History, where the Veteran reported recurrent back pain and the examining physician noted that the Veteran had back pain since a motor vehicle accident in July 1989; a May 1991 treatment report where the Veteran was noted to have re-injured his back while loading a truck; and the Veteran's June 2021 testimony regarding the onset and history of his back pain since the 1989 motor vehicle accident during service. Based on the foregoing, remand is warranted to afford the Veteran an adequate VA examination to determine the etiology of his thoracic spine disability. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic fatigue syndrome is remanded. As noted above, the Veteran contends that his sleep apnea is caused or aggravated by his service-connected chronic fatigue syndrome. The Veteran was afforded a VA examination in May 2012 to determine the etiology of the condition. Notably, the examiner's opinion was limited only to whether the condition was related to the Veteran's Gulf War service and did not address the Veteran's secondary service connection claim. Accordingly, remand is warranted to afford the Veteran a new VA examination and medical opinion. Additionally, obesity can be an "intermediate step" between a service-connected disability and a current disability for secondary service connection purposes. See 38 C.F.R. § 3.310. To succeed on this claim, it must be shown that: (i) a service-connected disability caused him to become obese; (ii) obesity was a substantial factor in causing the secondary disability; and, (iii) the secondary disability would not have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). Notably, at the time of the May 2012 medical opinion, the examiner indicated that the Veteran's sleep apnea was due to his obesity. To that extent, the Veteran's VA treatment records show a BMI of 40.77 dating back as early as November 2012. His VA treatment records also show a BMI of 30 and an obese abdomen as recently as August 2019. The Board cannot make a fully informed decision as to the issues on appeal because no VA examination has opined whether the Veteran's obesity/being overweight is an "intermediate step" between any or all of the Veteran's service-connected disabilities and his claimed sleep apnea or thoracic spine disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his thoracic spine disability. Access to the claims file must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinion: Whether it is at least as likely as not (50% or greater probability) that the Veteran's thoracic spine disability had its onset in service or is related to an event, injury or disease incurred in service, to include a 1989 motor vehicle accident. The examiner should address all relevant lay and medical evidence of record, to include the following: i. An October 1990 treatment record where the Veteran reported sharp pain in lower lumbar area with history of back injury in 1989; ii. An October 1990 treatment record showing complaints of back pain that had lasted 2 years, with a diagnosis of bilateral paraspinal spasm; iii. A March 1991 sick slip indicating that the Veteran had upper back pain and was diagnosed with a muscle spasm; iv. A May 1991 Report of Medical History, where the Veteran reported recurrent back pain and the examining physician noted that the Veteran had back pain since a motor vehicle accident in July 1989; v. A May 1991 treatment report where the Veteran was noted to have re-injured his back while loading a truck; and vi. The Veteran's June 2021 testimony regarding the onset and history of his back pain since the 1989 motor vehicle accident with symptoms since service. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his sleep apnea. Access to the claims file must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide the following opinion: a. Whether it is at least as likely as not (50% or greater probability) that the Veteran's sleep apnea had its onset in service or is related to an event, injury or disease incurred in service, to include exposure to environmental toxins during the Gulf War. b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by his service-connected chronic fatigue syndrome. c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated (worsened beyond normal progression) by his service-connected chronic fatigue syndrome. The examiner is reminded that causation and aggravation are separate inquiries, and therefore, separate findings and rationales should be provided for each one. Obesity d.) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. e.) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated the Veteran's sleep apnea or thoracic spine disability, including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In rendering the opinion, the examiner should consider/address the following: i. VA treatment records showing a BMI of 40.77 dating back as early as November 2012. ii. VA treatment records showing a BMI of 30 and an obese abdomen as recently as August 2019. iii. A May 2012 medical opinion, where the examiner indicated that the Veteran's sleep apnea was due to his obesity. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.