Citation Nr: 21065461 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-34 699 DATE: October 26, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for an acquired psychiatric disability is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected tinnitus, lumbar spine, and cervical spine disabilities and/or medication for service-connected spine disabilities, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected lumbar spine and cervical spine disabilities and/or medication for service-connected spine disabilities, is remanded. Entitlement to service connection for neuropathy of the right lower extremity (RLE), to include as secondary to service-connected lumbar spine disability and cervical spine disability, is remanded. Entitlement to service connection for neuropathy of the left upper extremity (LUE), to include as secondary to service-connected cervical spine disability, is remanded. FINDINGS OF FACT 1. In an August 2005 VA rating decision, the claim of service connection for depression was denied; the Veteran was notified of this action and of his appellate rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within a year thereafter. 2. The evidence received since the August 2005 VA rating decision, regarding service connection for an acquired psychiatric disability, is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2005 VA rating decisions, regarding service connection for depression, is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). 2. New and material evidence has been received since the August 2005 VA rating decision to reopen service connection for an acquired psychiatric disability. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1986 to August 1986, July 1987 to January 1992, and March 1994 to June 1997. The Board has recharacterized the Veteran's claims for pain and weakness in right leg and foot and for numbness, pain and weakness in left arm and hand more broadly to neuropathy of the RLE and of the LUE in order to clarify the nature of the benefit sought and ensure complete consideration of the claims. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Board has also recharacterized the Veteran's claims for depression and anxiety more broadly to an acquired psychiatric disability in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons, 23 Vet. App. at 5-6, 8. Before reaching the merits of the claim for an acquired psychiatric disability, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). While service personnel records and additional service treatment records were associated with the claims file in 2016, these official service department records are not relevant to the merits of why service connection for depression was last denied in the August 2005 VA rating decision. See 38 C.F.R. § 3.156(c) (2020). Therefore, the Board has recharacterized this issue accordingly. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for depression In the August 2005 VA rating decision, service connection for depression was denied because while there was in-service treatment in February 1997 for a diagnosis of adjustment disorder with anxious/depressed mood with narcissistic traits, there was no permanent residual or chronic disability demonstrated by evidence following service. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the August 2005 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. In December 2012, the Veteran's informal request to reopen his claim for depression was obtained and associated with the record. Evidence received since the August 2005 VA rating decision includes a December 2012 VA Form 21-4138 and June 2021 Board hearing transcript that shows the Veteran's assertion that his psychiatric disability is secondary to the impact and use of pain medications from his service-connected tinnitus, lumbar spine, and cervical spine disabilities. Additionally, a January 2016 VA treatment that shows the Veteran was hospitalized for four days and was diagnosed with adjustment disorder with mixed emotional features and recurrent Major Depressive Disorder (MDD) at the time of discharge under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104(b) (2012)]," any evidence supporting a new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Board finds that this evidence is new and material to the elements of establishing a nexus on a secondary basis and a current disability on direct and secondary bases, which was not established at the time of the August 2005 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected tinnitus, lumbar spine, and cervical spine disabilities and/or medication for service-connected spine disabilities As discussed above, review of service treatment records shows an assessment for adjustment disorder with anxious/depressed mood with narcissistic traits in February 1997, the Veteran asserted in a December 2012 VA Form 21-4138 and at the June 2021 Board hearing that his psychiatric disability is secondary to his service-connected tinnitus, lumbar spine, and cervical spine disabilities, and a January 2016 VA treatment record shows the Veteran's hospitalization discharge diagnosis of adjustment disorder with mixed emotional features and recurrent MDD under the DSM-5 criteria. Review of the record also shows that the issues of service connection for tinnitus was granted in a December 2004 VA rating decision, for a lumbar spine disability was granted in a March 1998 VA rating decision, and for a cervical spine disability in the September 2002 Board decision. In light of this pertinent evidence of record, the Board finds that additional development is needed to determine the etiology of an acquired psychiatric disability on direct and secondary bases. See 38 U.S.C. § 5103A(a); 38 C.F.R. §§ 3.159, 3.303, 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected lumbar spine and cervical spine disabilities and/or medication for service-connected spine disabilities Since separation from active service in June 1997, the Veteran was afforded a VA examination and medical opinion in January 2014 for sleep apnea on a secondary basis regarding causation and aggravation to service-connected cervical spine disability, to include consideration of medication and weight gain. Nevertheless, review of the claims file also shows the Veteran's contention in the June 2013 VA Form 21-4138 that his sleep apnea is secondary to his service-connected lumbar spine disability. He also reported at the June 2021 Board hearing that he had signs and symptoms of sleep apnea, specifically snoring, headaches, and dry mouth, while in service and that he previously submitted a lay statement from his wife who reported her observations of the Veteran snoring really loud which kept her from sleeping. In light of this pertinent evidence of record, the Board finds that additional development is needed to determine the existence and etiology of sleep apnea on direct and secondary bases. See 38 U.S.C. § 5103A(a); 38 C.F.R. §§ 3.159, 3.303, 3.310; Barr, 21 Vet. App. at 312. The Board emphasizes that it is not determining whether or not the Veteran's lay assertion of in-service snoring, headaches, and dry mouth is credible at this time, as the additional development set forth in the directives below could impact that determination. 3. Service connection for neuropathy of the RLE, to include as secondary to service-connected lumbar spine disability and cervical spine disability Since separation from active service in June 1997, the Veteran was afforded a VA examination and medical opinion in January 2014 for peripheral nerves conditions on a secondary basis regarding causation and aggravation to service-connected lumbar and cervical spine disabilities, to include consideration of medication and weight gain and arthritis of the lumbar spine. Nevertheless, review of the claims file also shows the Veteran reported at the June 2021 Board hearing that he started having lower leg issues from 1994 to 1996 during his third period of active service and still has sharp pains shooting down the right leg and difficulty straightening out his leg to stand up. In light of this pertinent evidence of record, the Board finds that additional development is needed to determine the etiology of the January 2014 electromyography (EMG) results of minor peripheral sensory neuropathy in the RLE on a direct basis. See 38 U.S.C. § 5103A(a); 38 C.F.R. §§ 3.159, 3.303; Barr, 21 Vet. App. at 312. The Board emphasizes that it is not determining whether or not the Veteran's lay assertion of lower leg issues during his third period of active service from March 1994 to June 1997 is credible at this time, as the additional development set forth in the directives below could impact that determination. 4. Service connection for neuropathy of the LUE, to include as secondary to service-connected cervical spine disability Since separation from active service in June 1997, the Veteran was afforded a VA examination for peripheral nerves conditions in January 2014. The VA examiner noted a diagnosis dated in November 2004 of brachial plexopathy left arm and hand pain and EMG results of the LUE in July 2011 revealed very minimal LUE carpal tunnel syndrome. Following the clinical evaluation and review of the claims file, the VA examiner rendered medical opinions for the Veteran's LUE condition on a secondary basis regarding causation and aggravation to service-connected cervical spine disability, to include consideration of medication and weight, and concluded the (unspecified) LUE condition is more likely due to the brachial plexopathy in 2004. After a review of this January 2014 VA medical opinion, it is unclear as to whether the VA examiner's use of the phrase "the Veteran's LUE condition" was referencing the diagnosis of brachial plexopathy left arm and hand pain or the July 2011 EMG results of very minimal LUE carpal tunnel syndrome. As a result, the Board finds that additional development is needed to determine the etiology of the Veteran's post-service diagnoses of brachial plexopathy left arm and hand pain and LUE carpal tunnel syndrome on a secondary basis. See 38 U.S.C. § 5103A(a); 38 C.F.R. §§ 3.159, 3.310; Barr, 21 Vet. App. at 312. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his acquired psychiatric disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the psychiatric diagnosis under the DSM-5 criteria (including adjustment disorder with mixed emotional features and recurrent MDD, noted in January 2016 VA treatment record) began during active service or is related to an incident of service, to include documented in-service assessment for adjustment disorder with anxious/depressed mood with narcissistic traits. (b.) Whether it is at least as likely as not that the psychiatric diagnosis under the DSM-5 criteria (including adjustment disorder with mixed emotional features and recurrent MDD, noted in January 2016 VA treatment record) was proximately due to or the result of his service-connected tinnitus, lumbar spine disability, or cervical spine disability and/or medication for service-connected spine disabilities. (c.) Whether it is at least as likely as not that the psychiatric diagnosis under the DSM-5 criteria (including adjustment disorder with mixed emotional features and recurrent MDD, noted in January 2016 VA treatment record) was aggravated beyond its natural progression by his tinnitus, lumbar spine disability, or cervical spine disability and/or medication for service-connected spine disabilities. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's lay assertion of in-service snoring, headaches, and dry mouth is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea (even if since resolved) began during active service or is related to an incident of service, to include lay assertions of in-service snoring, headaches, and dry mouth (asserted at the June 2021 Board hearing). (b.) Whether it is at least as likely as not that the Veteran's obstructive sleep apnea was proximately due to or the result of his service-connected lumbar spine disability. (c.) Whether it is at least as likely as not that the Veteran's obstructive sleep apnea was aggravated beyond its natural progression by his service-connected lumbar spine disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his claim on appeal for neuropathy of the right lower extremity (RLE). The entire claims file and a copy of this remand must be made available to the examiner for review. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's lay assertion of lower leg issues during his third period of active service from March 1994 to June 1997 is true. If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or the evidence in this case. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's minor peripheral sensory neuropathy in the RLE (even if since resolved) began during active service or is related to an incident of service, to include lay assertions of lower leg issues during his third period of active service from March 1994 to June 1997 (asserted at the June 2021 Board hearing). The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claim on appeal for neuropathy of the left upper extremity (LUE). The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must opine as to the following: (a.) Whether it is at least as likely as not that the Veteran's brachial plexopathy left arm and hand pain (even if since resolved) was proximately due to or the result of his service-connected cervical spine disability. (b.) Whether it is at least as likely as not that the Veteran's brachial plexopathy left arm and hand pain (even if since resolved) was aggravated beyond its natural progression by his service-connected cervical spine disability. (c.) Whether it is at least as likely as not that the Veteran's very minimal LUE carpal tunnel syndrome (even if since resolved) was proximately due to or the result of his service-connected cervical spine disability. (d.) Whether it is at least as likely as not that the Veteran's very minimal LUE carpal tunnel syndrome (even if since resolved) was aggravated beyond its natural progression by his service-connected cervical spine disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.