Citation Nr: 21065711 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-31 483 DATE: October 27, 2021 ORDER New and material evidence has been received and the claim for compensation under 38 U.S.C. § 1151 for numbness and loss of use of left hand and fingers is reopened. Service connection for obstructive sleep apnea (OSA) is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for numbness and loss of use of left hand and fingers due to achilles tendon surgery is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for numbness in the left arm due to achilles tendon surgery is remanded. Service connection for major depressive disorder (claimed as depression) as secondary to numbness and loss of use of left hand and fingers is remanded. FINDINGS OF FACT 1. New and material evidence has been received since the unappealed March 2011 rating decision to reopen the claim for compensation under 38 U.S.C. § 1151 for numbness and loss of use of left hand and fingers. 2. The preponderance of the evidence weighs against finding that the Veteran's OSA was incurred in or is causally related to service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for compensation under 38 U.S.C. § 1151 for numbness and loss of use of left hand and fingers have been met. 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria for service connection for OSA have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b), 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from May 1985 to October 1996 and from October 1996 to December 1999. The period from October 1996 to December 1999 is considered dishonorable for VA purposes. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision. 1. Whether new and material evidence has been received to reopen the claim for compensation under 38 U.S.C. § 1151 for numbness and loss of use of left hand and fingers VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156 (a). Since the unappealed March 2011 rating decision, VA received surgical records from the VA medical facility that performed the Veteran's March 2010 achilles tendon repair. These records outline the complications resulting from this surgical procedure including a possible nerve compression impacting the left upper extremity. This evidence constitutes "new evidence" because it was not previously submitted and/or considered by VA. Additionally, it constitutes "material evidence" because it relates to an unestablished fact that the Veteran's loss of use of the left hand may be an additional disability that is the result of negligence or other error by VA medical personnel. Thus, as new and material evidence has been submitted, the claim for service connection for compensation under 38 U.S.C. § 1151 for numbness and loss of use of left hand and fingers is reopened. 2. Service connection for OSA Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The medical evidence reflects a diagnosis for this disability with prescription of a CPAP machine in December 2013. However, a review of the medical and lay evidence reveals nothing to substantiate the in-service incurrence and/or causal relationship (nexus) elements of the Veteran's service connection for OSA claim. To restate, a claim for service connection requires evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Critically, however, the Veteran has not submitted any evidence tending to substantiate in-service incurrence or aggravation of his OSA disability. Moreover, no evidence has been submitted tending to show a causal nexus between the Veteran's OSA and his service. To the extent that the Veteran has asserted generally (by virtue of his claim and appeal) that his OSA was incurred in-service and/or is causally related to his service, the Board finds that he is not qualified ("competent") to offer an opinion as to the cause of this disability because this determination requires a level of medical expertise which the Veteran, as a layperson, does not possess. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges that the Veteran has not been afforded an examination in connection with this claim, but VA does not have a duty to provide one here, as there is no indication that the condition may be associated with the Veteran's service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In the absence of competent probative medical evidence relating the Veteran's OSA to his active service, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 3. Entitlement to compensation under 38 U.S.C. § 1151 for numbness and loss of use of left hand and fingers 4. Entitlement to compensation under 38 U.S.C. § 1151 for numbness in the left arm due to achilles tendon surgery 5. Service connection for major depressive disorder (claimed as depression) as secondary to numbness and loss of use of left hand and fingers The Board observes that the Regional Office (RO) assigned multiple requests to the VA Tennessee Valley Healthcare System (TVHS) for a medical opinion regarding the Veteran's claims under 38 U.S.C. § 1151 for loss of use of the left hand and fingers as a complication of achilles tendon surgery performed by VA medical personnel. In a May 2017 communication, the Deputy Chief of the VA TVHS stated that they do not have the medical personnel to complete this request. Accordingly, and to avoid any conflicts of interest, this matter will be referred to a qualified objective contract examiner outside of the VA healthcare system with the necessary expertise to obtain the required opinion. In that regard, the Board acknowledges that a November 2016 VA medical opinion was offered by a physician's assistant within the VA TVHS with respect to the Veteran's claim under 38 U.S.C. § 1151 for numbness in the left arm due to achilles tendon surgery. Considering the Deputy Chief's misgivings about the absence of medical personnel within the VA TVHS that are qualified to offer such opinions, and to avoid any potential conflicts of interest, the Board will also refer the 38 U.S.C. § 1151 for numbness in the left arm claim for an opinion by a qualified outside contract examiner with the necessary expertise. Finally, the Veteran's service connection claim for depression must also be remanded until the below development is resolved because it is inextricably intertwined with the 38 U.S.C. § 1151 claim being remanded below (the Veteran's secondary service connection theory of entitlement is predicated on service connection being granted for loss of use of the left hand and associated nerve damage). See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Obtain any relevant outstanding VA or private treatment records. 2. Forward the claims file to a physician contract examiner outside of the VA healthcare network to address the issue on appeal. If an in-person examination is required by the examiner, one should be scheduled. (a.) Does the Veteran have additional disability(ies) that were caused or chronically worsened because of June 2010 achilles tendon surgery performed by VA medical personnel? (b.) If there is a diagnosed additional disability or disabilities, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of is it due to carelessness, negligence, lack of proper skill, error in judgment, other instance of fault on the part of the VA prior to and in furnishing treatment? (c.) If there is a diagnosed additional disability or disabilities, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of an event not reasonably foreseeable? *The examiner is instructed that the term "event not reasonably foreseeable" means whether a reasonable health care provider would have foreseen the event. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 3. If, and only if, benefits are established for loss of use of the left hand with associated nerve damage above, forward the Veterans claims file to a qualified VA examiner for medical opinions which addresses the below with respect to a claimed depressive disorder: (a.) Is it at least as likely as not (50 percent or greater probability) that this disability is (1) proximately due to loss of use of the left hand with associated nerve damage; or (2) aggravated (worsened beyond natural progression) by loss of use of the left hand with associated nerve damage? Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.