Citation Nr: 21065359 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-41 979 DATE: October 26, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension and to that extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea and to that extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for a right wrist disability and to that extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability and to that extent only, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, to include depression, and to that extent only, the appeal is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a psychiatric disability, to include depression, is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to a rating higher than 10 percent for a lumbar spine disability prior to June 21, 2018, and higher than 20 percent as of June 21, 2018, is remanded. Entitlement to a rating higher than 0 percent for gout is remanded. FINDINGS OF FACT 1. Service connection for hypertension, sleep apnea, right wrist, left shoulder, and psychiatric disability was denied in a November 2009 Agency of Original Jurisdiction (AOJ) rating decision and the Veteran did not perfect an appeal or submit new and material evidence within one year. 2. The evidence received since the November 2009 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a right wrist disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981 to February 1992, and from November 2007 to January 2008. In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension Service connection for high blood pressure was denied in a November 2009 AOJ decision. There was a formal finding of unavailability of service medical records for the Veteran's period of service from March 1981 to February 1992. The record included service medical records for the Veteran's second period of service, private treatment records, lay statements, and a March 2009 VA examination. The Veteran reported being diagnosed in 2007 at Ft. Dix. The AOJ concluded that evidence of record did not show the preexisting hypertension was worsened by service. Evidence associated with the claims file since the November 2009 AOJ decision includes additional lay statements, VA and private medical records, a February 2015 VA examination, and a November 2020 Board hearing. In particular, in an August 2018 statement, the Veteran contended the hypertension was due to lack of exercise caused by a service-connected lumbar spine disability. That evidence relates to an unestablished fact necessary to substantiate the claim, and is neither cumulative nor redundant. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the diagnoses are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, this evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for hypertension is reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claim, that does not make it sufficient to allow the grant of the benefits sought. The claim is remanded for development. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right wrist disability 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disability, to include depression Service connection for sleep apnea, right wrist, left shoulder, and psychiatric disability was denied in a November 2009 AOJ decision. The record included a formal finding of unavailability of service medical records for the Veteran's first period of service from March 1981 to February 1992. There was a formal finding of unavailability of service medical records for the Veteran's period of service from March 1981 to February 1992. The record included service medical records for the Veteran's second period of service, private treatment records, lay statements, and March 2009 VA examinations. The AOJ concluded the evidence of record did not show a connection between any current sleep apnea, right wrist, left shoulder disability and service. As the March 2009 VA psychiatric examination did not show a current PTSD diagnosis, the AOJ also found no there was basis for service connection for a psychiatric disability. Evidence associated with the claims file since the November 2009 AOJ decision includes service medical records for the Veteran's first period of service and reserve service, lay statements, VA and private medical records, and the February 2015 VA examinations. In particular, the service medical records for the first period of service show a hospitalization for right wrist surgery and a left shoulder injury. Reserve service medical records included profiles for depression and sleep apnea. This evidence relates to unestablished facts necessary to substantiate these claims, and is neither cumulative nor redundant. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As the service records are presumed to be credible for the limited purpose of attempting to reopen a previously denied claims, this evidence raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claims for service connection for sleep apnea, right wrist, left shoulder, and psychiatric disability are reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claims, that does not make it sufficient to allow the grant of the benefits sought. The claims are remanded for development. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for sleep apnea is remanded. 3. Entitlement to service connection for a right wrist disability is remanded. 4. Entitlement to service connection for a left shoulder disability is remanded. 5. Entitlement to service connection for a psychiatric disability, to include depression, is remanded. 6. Entitlement to service connection for a right hip disability is remanded. 7. Entitlement to service connection for diabetes mellitus is remanded. The Board notes that the Veteran's service records are incomplete. The Veteran had two periods of active duty with additional service in the Reserves. However, the records for the first period of service are not included in the record. An October 2009 VA memorandum indicating a formal finding of unavailability of the service medical records from March 1981 to February 1992 showed that efforts were made to request records from the Veteran, the Reserves, and the Records Management Center. A review of the record indicates that the Veteran requested the service records and submitted relevant records for the first period of service following a request for the service records. As the Veteran's service records from the first period of service exist, they must be obtained. On remand, a complete copy of the service personnel and medical records and Reserve service records should be obtained. 8. Entitlement to service connection for migraine headaches is remanded. The Veteran contends that a current headache disability had its onset in service. A June 1989 service medical record shows headache complaints. At the November 2020 hearing, the Veteran reported that the headaches began during service and have continued since. The service medical records noted headache complaints. In light of the above, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches because no VA examiner has opined whether the disability is related to service. Therefore, an appropriate examination should be conducted on remand. After receipt of the outstanding service records, an appropriate examination should be conducted upon remand. 38 U.S.C. § 5103A; McClendon v. Nicholson, 20 Vet. App. 79 (2006). 9. Entitlement to a rating higher than 10 percent for a lumbar spine disability prior to June 21, 2018, and higher than 20 percent as of June 21, 2018, is remanded. The Veteran was most recently examined in a June 2016 VA examination. Since then, at the November 2020 hearing, the Veteran reported that he continued to have daily pain, received steroid injections, and went to physical therapy. He also had flare-ups with pain that ranged from 5 to 9 out of 10 at least three or four times per month. The June 2016 VA examination did not show any flare-ups. Because of the indication of worsening, the Board finds it necessary to remand this matter to provide the Veteran an opportunity for a more current VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 10. Entitlement to a rating higher than 0 percent for gout is remanded. The Veteran was most recently examined in a June 2016 VA examination. Since then, at the November 2020 hearing, the Veteran reported no flare-ups in the past year. However, a protruding lump was visible on the knuckle of the right hand. The Veteran stated there was also a lump on the index finger. The June 2016 examination did not show any joint deformities. Because of the indication of worsening, the Board finds it necessary to remand this matter to provide the Veteran an opportunity for a more current VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Contact the appropriate facility and attempt to obtain missing service medical and personnel records, to specifically include service enlistment and separation examination reports. If missing service medical records are not available, or the search for any service records yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain any missing service medical records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. All attempts to locate records must be documented in the claims file. 2. If it is determined that there are missing service records for the Veteran's periods of service and they are not secured, send a notice letter notifying the Veteran that he can submit alternative sources or evidence in place of the missing service treatment records. 3. Then, schedule the Veteran for a VA examination to determine the etiology of hypertension. The examiner must review the claims file and should note that review in the report. A complete rationale for all opinions should be provided in the examination report. After examining the Veteran and reviewing his claims file, the examiner is asked to: (a.) Did any hypertension clearly and unmistakably (it is medically undebatable) preexist the Veteran's entrance to active service? The examiner should state what evidence in the record supports that opinion. (b.) If any hypertension is found to have clearly and unmistakably preexisted service, the examiner should provide an opinion as to whether it is clear and unmistakable that the preexisting hypertension was not aggravated during service. (c.) For any hypertension that is found to not clearly and unmistakably have preexisted service, the examiner should provide an opinion was to whether it is at least as likely as not (50 percent or greater probability) that any hypertension is etiologically related to service or any injury, disease, or event in service. (d.) For any hypertension that is found to not clearly and unmistakably have preexisted service, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) proximately due to, or aggravated by the service-connected disabilities, to include as due to a lack of exercise due to the service-connected lumbar spine disability. 4. Schedule the Veteran for a VA examination to determine the current nature and etiology of any diagnosed obstructive sleep apnea. The examiner must review the claims file and should note that review in the report. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail. A complete rationale should be provided for any opinions expressed and conclusions reached. After reviewing the claims file and examining the Veteran, the examiner is asked to: (a.) State whether a diagnosis of obstructive sleep is warranted. (b.) For any currently shown obstructive sleep apnea, opine whether it is at least as likely as not (50 percent or greater probability) that sleep apnea had its onset during service or is otherwise related to service. In so doing, consider all evidence of record, and specifically comment on the August 2018 statement of continued symptomatology that began in 1991 from exposure to burn pits and burning oil, and wearing protective gear that restricted airflow, and the November 2020 hearing testimony reporting witnessed incidents of apneas. 5. Schedule the Veteran for a VA examination to determine the current nature and etiology of any currently diagnosed left shoulder and right wrist disabilities. The examiner must review the claims file and should note that review in the report. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail. A complete rationale should be provided for any opinions expressed and conclusions reached. After reviewing the claims file and examining the Veteran, the examiner is asked to: (a.) Diagnose all left shoulder and right wrist disabilities, to include arthritis. (b.) For each left shoulder and right wrist disability found, opine whether it is at least as likely as not (50 percent or greater probability) that each disability had its onset during service or is otherwise related to service or any incident of service. In so doing, consider all evidence of record, and specifically comment on the August 1981 service medical record showing a ganglion cyst on the wrist, October 1981 service medical records indicating a profile and hospitalization for a mass on the right wrist, October 1984 service medical record showing a right wrist injury, May 1985 service medical record noting a left shoulder injury from a fight, and the November 2020 hearing testimony reporting recurrent shoulder dislocations until surgical repair in 1997. 6. Schedule the Veteran for a VA examination to determine the etiology of any psychiatric disability. The examiner must review the claims file and should note that review in the report. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail. A complete rationale should be provided for any opinions expressed and conclusions reached. After reviewing the claims file and examining the Veteran, the examiner is asked to: (a.) Diagnose all psychiatric disabilities. (b.) For each diagnosed psychiatric disability, opine whether it is at least as likely as not (50 percent or greater probability) that each disability had its onset during service or is otherwise related to service or any incident of service. (c.) For each diagnosed psychiatric disability, provide an opinion as to whether it is at least as likely as not proximately due to, or aggravated by, the service-connected lumbar spine and gout disabilities. The examiner must consider all evidence of record, and specifically comment on the August 2018 statement that the disability was possibly due to a lack of exercise and not being able to serve his country to his previous ability as a result of the service-connected lumbar spine disability. A complete rationale should be provided for any opinions expressed and conclusions reached. 7. Schedule the Veteran for a VA examination to determine the current nature and etiology of any right hip disability. The examiner must review the claims file and should note that review in the report. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail. A complete rationale should be provided for any opinions expressed and conclusions reached. After reviewing the claims file and examining the Veteran, the examiner is asked to: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that any right hip disability had its onset during service or is otherwise related to service. The examiner must consider all evidence of record, and specifically comment on the August 2018 statement that the disability was diagnosed during service, and the November 2020 hearing testimony contending the disability developed due to active duty and service in the Reserves from the running and pounding the joint during daily exercises and training. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any right hip disability is proximately due to, or aggravated by, the service-connected lumbar spine and gout disabilities. The examiner must consider all evidence of record, and specifically comment on the August 2018 statement that the disability was possibly due to inactivity from the service-connected lumbar spine disability. 8. Schedule the Veteran for a VA examination to determine the etiology of diabetes mellitus. The examiner must review the claims file and should note that review in the report. A complete rationale should be provided for any opinions expressed and conclusions reached. After examining the Veteran and reviewing his claims file, the examiner is asked to: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that diabetes mellitus had its onset during active service or within one year following separation from service, or is otherwise related to any incident of service. The examiner must consider all evidence of record, and specifically comment on the August 2018 statement indicating the disability was due to eating unhealthy food provided during service since he was stationed in remote locations. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that diabetes mellitus is proximately due to, or aggravated by, the service-connected disabilities, to include as due to a lack of exercise due to the service-connected lumbar spine disability. In so doing, consider all evidence of record, and specifically comment on the August 2018 statement indicating the disability was due in activity from the service-connected lumbar spine disability. 9. Schedule the Veteran for a VA examination to determine the etiology of headaches. The examiner must review the claims file and should note that review in the report. After examining the Veteran and reviewing his claims file, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that headaches had their onset during active service or within one year following separation from service, or are otherwise related to any incident of service. The examiner must consider all evidence of record and specifically comment on the June 1989 service medical record noting headaches, and the November 2020 testimony reporting continued symptomatology since service. A complete rationale should be provided for any opinions expressed and conclusions reached. 10. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected gout. The examiner must review the claims file and should note that review in the report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. A complete rationale for all opinions should be provided in the examination report. 11. Schedule the Veteran for a VA spine examination of the lumbar spine. The examiner must review the claims file and should note that review in the report. The examiner must provide ranges of motion for passive and active motion of the lumbar spine and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare-ups or with repeated use. The examiner should note any incapacitating episodes associated with the lumbar spine disability, and their frequency and duration. The examiner should state whether there are incapacitating episodes of intervertebral disc syndrome requiring treatment by a physician and bed rest prescribed by a physician. If so, the examiner should state the duration of those episodes in a 12 month period. The examiner should state whether there is any neurologic symptomatology associated with the lumbar spine disability. A complete rationale for all opinions should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.