Citation Nr: 21062654 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-00 954 DATE: October 8, 2021 ORDER Entitlement to service connection for a spleen disability is dismissed. Entitlement to a compensable rating for a right knee scar is dismissed. New and material evidence has been received to reopen the previously denied claim for service connection for obstructive sleep apnea (OSA), and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for OSA is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to a rating in excess of 10 percent for a neck injury with degenerative joint disease (DJD) (neck disability) is remanded. Entitlement to a rating in excess of 10 percent for a low back injury with DJD (back disability) prior to December 5, 2017 is remanded. Entitlement to a rating in excess of 20 percent for a back disability since December 5, 2017 is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome with DJD (right knee disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At his April 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran, and his authorized representative, indicated that a withdrawal of the appeal as to the issue of entitlement to service connection for a spleen disability was requested. 2. At his April 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran, and his authorized representative, indicated that a withdrawal of the appeal as to the issue of entitlement to an increased rating for a right knee scar was requested. 3. The Veteran's claim for service connection for OSA was last denied in an October 2013 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. 4. Since that final denial, evidence relating to the current presence of OSA was submitted. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for a spleen disability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of entitlement to a compensable rating for a right knee scar have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria to reopen the claim for service connection for OSA have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1978 to September 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A transcript of his testimony is of record. 1. Entitlement to service connection for a spleen disability 2. Entitlement to a compensable rating for a right knee scar The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55 (2020). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, at his April 2021 hearing, the Veteran and his representative explicitly, unambiguously, and with a full understanding of the consequences, requested to withdraw the issues of entitlement to service connection for a spleen disability and entitlement to a compensable rating for a right knee scar and, hence, there remain no allegations of errors of fact or law for appellate consideration. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. See Hearing Transcript at 2. As the Veteran withdrew the appeal, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on this issue and it is dismissed. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for OSA Service connection for OSA was denied in an October 2013 rating decision on the basis that the record did not show a diagnosis of OSA. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52, 20.1103 (2020). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2020). New evidence means existing evidence not previously submitted to VA. 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. 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. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the October 2013 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2020). For example, the record contains a September 25, 2016 sleep study indicating that the Veteran was diagnosed with OSA. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. 2. Entitlement to service connection for a bilateral hearing loss disability is remanded. 3. Entitlement to a rating in excess of 10 percent for a neck disability is remanded. 4. Entitlement to a rating in excess of 10 percent for a back disability prior to December 5, 2017 is remanded. 5. Entitlement to a rating in excess of 20 percent for a back disability since December 5, 2017 is remanded. 6. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. 7. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. 8. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 9. Entitlement to a TDIU is remanded. The evidence indicates there may be outstanding relevant VA treatment records. An August 7, 2019 VA treatment record states that the Veteran was to return for a follow up appointment in August 2020. VA treatment records after August 26, 2019 have not been associated with the claims file. A remand to obtain the outstanding records is required. The record indicates that the Veteran is diagnosed with OSA. The Veteran asserts that he began snoring during service. Additionally, treatise evidence and private treatment records indicate that OSA may be related to his service-connected PTSD and/or hypertension. See December 30, 2008 B. Chapman, ARNP record (noting the Veteran likely had sleep apnea and that his hypertension probably played into it); September 25, 2016 sleep study (noting that OSA is associated with cardiac pulmonary, and neuropsychiatric disorders). The Board cannot make a fully informed decision on the issue because no VA examiner has opined whether the Veteran's OSA is related to service and/or his service-connected hypertension or PTSD. The Board has not overlooked the July 2021 opinion from Dr. Ellis. Nevertheless, that opinion did not acknowledge or address the December 30, 2008 record wherein the Veteran reported that the duration of his sleep disturbances and apneic episodes was limited to "the past couple months." Accordingly, a remand for a VA opinion is warranted. While the Veteran was provided a VA neck examination in January 2018, further clarification is required. While the examiner noted that the Veteran's lack of right and left biceps, triceps, and brachioradiales was a normal variant for him, the examiner provided no explanation or rationale in support of that finding. Additionally, while the examination report noted that there were no signs or symptoms of radiculopathy, at his April 2021 hearing the Veteran testified that he had numbness, tingling, pins, and needles sensations in his hands and arms. Accordingly, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his neck disability. While the Veteran was provided a VA back examination in January 2018, further clarification is required because the examination report indicated that the Veteran did not have any signs or symptoms of radiculopathy. As the Veteran is service connected for lower extremity radiculopathy and testified at his April 2021 hearing that he continued to have numbness, tingling, pins and needles, or a falling asleep sensation in his legs, another VA examination is warranted. The Veteran's last VA knee examination was in October 2016, given the passage of time and the fact the claim must be remanded for other development, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right knee disability. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, including his non-VA primary care provider. After securing any necessary releases, should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's OSA. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that OSA had its onset during service or is otherwise related to service. The clinician must address the Veteran's testimony that he snored during service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the OSA was caused by the service-connected hypertension and/or PTSD? (c.) If not caused by the service-connected hypertension and/or PTSD, is it at least as likely as not that the Veteran's OSA is worsened beyond natural progression (aggravated) by his service-connected hypertension and/or PTSD? If the clinician finds that the Veteran's OSA was aggravated by his service-connected hypertension and/or PTSD, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the OSA. The clinician must address the treatise evidence submitted by the Veteran regarding the association between OSA and psychiatric disorders, the December 30, 2008 record noting the Veteran likely had sleep apnea and that his hypertension probably plays into it, and the September 25, 2016 sleep study noting that OSA is associated with cardiac, pulmonary, and neuropsychiatric disorders. A complete rationale should be provided for all opinions and conclusions expressed. 3. After the above record development is completed to the extent possible, schedule the Veteran for a VA cervical spine examination to determine the current severity of his cervical spine disability and any associated neurological complication. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. (a.) For each range of motion testing conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (d.) The examiner must also address whether the Veteran has radiculopathy or any other neurologic abnormality related to his neck disability in light of his April 2021 testimony that he had occasional numbness, tingling, pins, and needles sensations in his hands and arms. A complete rationale should be provided for all opinions and conclusions expressed. 4. After the above record development is completed to the extent possible, schedule the Veteran for a VA thoracolumbar spine examination to determine the current severity of his lumbar spine disability and any associated neurological complication. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. (a.) For each range of motion testing conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (a.) The examiner must also address whether the Veteran has radiculopathy or any other neurologic abnormality related to his back disability in light of his April 2021 testimony that he had occasional numbness, tingling, pins, and needles sensations in his hands and arms. A complete rationale should be provided for all opinions and conclusions expressed. 5. After the above record development is completed to the extent possible, schedule the Veteran for a VA knee examination to determine the current nature and severity of his service-connected right knee disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken, and should be tested actively and passively, in weight bearing, and after repetitive use. (a.) For each range of motion testing conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be provided for all opinions and conclusions expressed. 6. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.